State v. Vanek, 6465

• Decision Date: 16 November 1938
• Docket Number: 6465
• Citation: 84 P.2d 567,59 Idaho 514
• Parties: STATE, Respondent, v. MARTIN VANEK and CHARLES VANEK, Appellants
• Court: Idaho Supreme Court

84 P.2d 567

59 Idaho 514

STATE, Respondent, v. MARTIN VANEK and CHARLES VANEK, Appellants

No. 6465

Supreme Court of Idaho

November 16, 1938

BURGLARY - INFORMATION, SUFFICIENCY OF - CHARACTER OF ENTRY-DEGREE OF BURGLARY-CONVICTION OF INCLUDED OFFENSE-POSSESSION OF RECENTLY STOLEN PROPERTY-PROOF OF CORPUS DELICTI-ALIBI AS A DEFENSE-BURDEN OF PROOF.

1. An information alleging that defendants did "wilfully wrongfully, unlawfully, feloniously and burglariously enter a certain building, to-wit, [described] barn.... with the intent then and there to commit larceny therein" sufficiently charged burglary, without alleging an unlawful breaking. (I. C. A., secs. 17-3401, 17-3402, 19-1309 to 19-1311.)

2. Under statutory definition of "burglary," a single act of entry is sufficient to constitute the crime, without the "breaking" required at common law. (I. C. A sec. 17-3401.)

3. Under statute defining entry of building with unlawful intent in the night-time as burglary in the first degree, and such entry in the daytime as burglary in the second degree, and statute authorizing conviction of a lesser offense included in that charged in the indictment, burglary indictment not alleging whether the crime was committed in the daytime or in the night-time supported a conviction of second degree burglary. (I. C. A., secs. 17-3402, 19-2212.)

4. In burglary prosecution, refusal of requested instructions, the substance of which was covered by instructions given, was not error.

5. In prosecution for burglary, instruction that the unexplained possession of recently stolen property, the corpus delicti having been established otherwise than by possession, is a circumstance from which guilt may be inferred, was not erroneous.

6. The burden of establishing defense of alibi is upon defendant.

7. Where defendant succeeds, by competent evidence, in establishing a reasonable doubt concerning his presence at the time and place of the offense, when such presence was essential to the commission of the offense, defendant is entitled to acquittal, but the character and extent of the evidence requisite to create such doubt is for the jury.

8. The essential elements of every crime must be established beyond a reasonable doubt, and no greater proof of the corpus delicti is required than of any other essential element of the crime of burglary.

9. Where evidence warrants finding of larceny, and circumstances show that the larceny could not have been committed without burglarious entry, the evidence also warrants finding of burglary. (I. C. A., sec. 17-3401.)

10. The jury are the exclusive judges of the credibility of witnesses and weight of evidence.

11. Proof tending to connect accused with an alleged crime may properly be admitted without first establishing the corpus delicti, the order of proof being within the court's sound discretion.

12. Circumstantial evidence, including the finding of stolen goods on defendants' farm, and other evidence held insufficient to authorize conviction of burglary. (I. C. A sec. 17-3401.)

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Appeal from judgment of conviction of burglary in the second degree and from an order denying motion for a new trial. Reversed and remanded.

Reversed and remanded with directions.

W. L. Dunn, for Appellants.

Two distinct propositions are involved: (1) That the act itself was done, and (2) that it was done by the person or persons charged. (State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A. L. R. 902.)

The proof must show that the burglary and larceny were parts of the same transaction. (State v. Sullivan, supra.)

There must be sufficient proof to connect the defendants with the breaking or entry or both. (State v. Allen, 53 Idaho 603, 26 P.2d 177.)

The burden is on the state to prove the possession was a conscious, exclusive, unexplained possession. (State v. Sullivan, supra; People v. Nichols, 39 Cal.App. 29, 177 P. 861; State v. Zoff, 196 Minn. 382, 265 N.W. 34; Echols v. State, 130 Tex. Cr. 511, 95 S.W.2d 442.)

Even the unexplained possession of goods, obtained by burglary, though a circumstance proper for the jury to consider, is insufficient to justify a verdict of guilty. (People v. Nichols, supra.)

J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

When the breaking and entry is proved, the state may show the unexplained possession of recently stolen property as tending to connect the defendant with the burglary. (State v. Pate, 43 Idaho 648, 253 P. 623; 9 C. J. 1070; State v. Davis, 57 Idaho 413, 65 P.2d 1385; State v. Bull, 47 Idaho 336, 337, 276 P. 528.)

Information in language of the statute, charging burglary, is sufficient. (Sec. 17-401, I. C. A.; State v. Bull, 47 Idaho 336, 276 P. 528.)

HOLDEN, C. J. Ailshie, J., concurs, BUDGE, J., Concur in the conclusion. MORGAN and GIVENS, JJ. concurring in part and dissenting in part.

OPINION

HOLDEN, C. J.

January 4, 1937, an auction of farm machinery, cattle, horses, etc., was held at the Padaraza farm in Twin Falls county. Lewis Robbins lived about four miles west and three miles south of that farm. Defendant Charles Vanek lived two and one-half miles north and two miles west of the Padaraza farm and about seven miles north of the Robbins farm. Robbins and wife left home on the morning of the day of the sale at about 11 o'clock and arrived at the Padaraza farm at about 11:30. In the Robbins barn at that time were hanging two bridles, a set of used double work harness, as well as a set of new harness, the latter hanging in plain view, and nine sacks of chopped oats, The defendants left home in the morning of that day at about 10:30 and arrived at Padaraza's at about 11 o'clock. Robbins saw the defendants at the sale immediately upon his arrival, but had no conversation with them, nor did he see them leave the sale. He got back home at about 3:30 in the afternoon. At about 5 o'clock, while doing the chores, he noticed a pole strap in the door of the barn and, upon investigation, found that the double set of used work harness, the two bridles, and three of the nine sacks of chopped oats were gone, and at once reported the loss to deputy sheriff Walter J. Tschannen. Later, at about 7 o'clock, Robbins, Tschannen, and Frank Goodman, by the aid of a flashlight, examined automobile tracks made in loose gravel, leading from the road on to the Robbins farm, tracing the tracks to within about 15 feet of the Robbins barn. Some time after 7 o'clock it snowed. The next morning Robbins, Tschannen, and Goodman went over to the Vanek farm where car tracks in snow were noticed (and examined) coming out of the yard, the tracks appearing to be the same as those leading from the road into the Robbins yard. Robbins then (the same morning) went to town and got a search warrant, immediately after which Tschannen, Robbins, Goodman, and Virgil K. Barron searched the Vanek premises where they found the missing bridles on top of a straw shed and the missing harness hidden in a clover chaff pile north of the Vanek barn. At the same time, while searching the Vanek premises, three empty bean sacks were found in the grain bin; one had no marks by which it could be identified; one had been torn and sewed up; on the bottom of the third there was an identification number which had been given Robbins by an elevator which had handled Robbins' beans, the identification number reading: "Lot No. 374."

Following the finding of that personal property on the Vanek farm, the Vaneks were arrested on a charge of burglary, given a preliminary examination, and held to answer to the district court for Twin Falls county. March 8, 1937, an information was filed in that court charging the Vaneks with the crime of burglary. March 29, 1937, they were tried and found guilty of burglary in the second degree. April 7, 1937, judgment was entered on the verdict, sentencing the defendants to serve not less than one nor more than five years in the state penitentiary. April 10, 1937, defendants moved for a new trial. April 30, 1937, the motion was denied. The defendants appealed from both the judgment of conviction and the order denying a new trial.

Appellants contend the information does not state facts sufficient to constitute a public offense; that it does not conform to the requirements of sections 19-1309, 19-1310, and 19-1311, I. C. A., in that, it is insisted, the information "does not contain a statement of the acts constituting the offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended; and that it is not direct and certain as to the offense charged or the particular circumstances of the offense charged"; that it fails to allege any unlawful breaking and entering, and it is "impossible to tell therefrom whether or not it is intended to be alleged that the alleged burglary was committed in the night time or in the day time."

The information charges that "The said Martin Vanek and Charles Vanek, on or about the 4th day of January, 1937, in the County of Twin Falls, State of Idaho, did then and there wilfully, wrongfully, unlawfully, feloniously and burglariously enter a certain building, to-wit, a barn located on Lot 3 and Lot 4, in Section 6, Township 11 South, Range 14 E. B. M., and occupied by Lewis Robbins, with the intent then and there to commit larceny therein."

Sec. 17-3401, I. C. A., provides:

"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary."

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