Thomas v. Com.

• Decision Date: 01 November 1912
• Citation: 150 Ky. 374,150 S.W. 376
• Parties: THOMAS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

150 S.W. 376

150 Ky. 374

THOMAS v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 1, 1912

Appeal from Circuit Court, Fayette County.

Luther Thomas was convicted of grand larceny, and appeals. Reversed and remanded.

Nat H Hobbs, of Lexington, for appellant.

James Garnett, Atty. Gen., and Chas. H. Morris, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellee was tried in the court below under the following indictment: "The Commonwealth of Kentucky against Luther Thomas, Housebreaking. The grand jury of Fayette county, in the name and by the authority of the commonwealth of Kentucky, accuse Luther Thomas of the crime of unlawfully and feloniously breaking and entering into a dwelling house with the felonious intent to steal therefrom articles of value and then and there taking, stealing and carrying away therefrom stoves, water pipes, etc., of the value of more than $20.00 committed as follows, viz.: That said Luther Thomas on the 30th day of April, 1912, in the county aforesaid and before the finding of this indictment, with force and arms did break into and enter into the dwelling house of Joe Dinnelli, No 423 South Upper street, Lexington, Ky. with the felonious intent to take, steal, and carry away therefrom articles of value, and did then and there unlawfully and feloniously take, steal, and carry away therefrom, four brass stoves, lead pipes and other articles of value, a further description of which is to this grand jury unknown, of the value of forty ($40.00) dollars, the subject of grand larceny and the personal property of Joe Dinnelli, with the fraudulent intent then and there to convert the same to his own use and to permanently deprive the said owner of his property therein, against the peace and dignity of the commonwealth of Kentucky. John R. Allen, Commonwealth's Attorney. Witnesses: Jim Stewart. Thos. Donlan. Jeff. Thurman. Mike Steela. Jow Jinnelli." The jury, by their verdict, found him guilty of grand larceny, and his punishment was fixed by sentence and judgment of the court at confinement in the penitentiary not less than one nor more than five years. He was refused a new trial, and has appealed.

He complains that the trial court erred to the prejudice of his substantial rights (1) in refusing to peremptorily instruct the jury to acquit him; (2) in rejecting his plea of former acquittal; (3) in failing to instruct the jury that, if they found him guilty at all, his offense was only grand larceny.

The evidence conduced to prove that the dwelling house was entered by some one through a window, the latch or fastening of which was broken to permit the raising of the sash; that a brass stove used for beating a bathroom and a certain lead pipe connected with the bathtub were taken at the time the house was entered; that these articles were of greater value than $20; that they were in appellant's possession a day or two after they were taken from the house broken into, and were by him sold to a dealer in such articles; and that they were fully identified by Dinnelli, the owner of the house, as his property and the same taken from the house. As appellant gave no satisfactory explanation of his possession of this property, the above evidence was sufficient to take the case to the jury, unless his plea of a former acquittal, which we will presently consider, constituted a bar to the prosecution.

It is, however, insisted for appellant that, as the house broken into and entered was at the time unoccupied, it was not a dwelling house within the meaning of section 1162, Kentucky Statutes, which makes the felonious breaking into a dwelling house a crime and prescribes the punishment therefor. Manifestly this contention is unsound. In Commonwealth v. Woolfolk, 121 Ky. 167, 89 S.W. 111, 28 Ky. Law Rep. 114, the indictment charged the defendant with the crime of breaking into and entering a dwelling house which the evidence showed to be temporarily vacant, because of which the jury, under a peremptory instruction from the trial court, returned a verdict of acquittal. In holding this to be error we said: "Was the building broken into a dwelling house in the meaning of the statute? Any one of the following definitions of a dwelling house may be accepted as legally correct: 'A place of residence, habitation.' 'A residence, domicile or mansion.' 'A building for the habitation of man.' 'A house designed to be occupied as a place of abode.' 'A house occupied or intended to be occupied as a residence.' Cyc. 1226, §§ 1162, 1163, and 1164. Ky. Stats. 1903 treat of felonies that may be committed by breaking into or stealing from buildings of practically every conceivable character and class. The dwelling house is one of the many enumerated and belongs to one class. It is distinguished from all other houses mentioned in the several sections of the statute, supra, by its name, and also by the use to which it is put or designed. The term 'dwelling house' is therefore one of differentiation, a name which distinguishes it from every other house or class. To constitute a building a dwelling house, it is not necessary that it be occupied as a place of residence by a family or person. If constructed for use as a place of residence by a family or person, it is a dwelling house even in the process of erection, and is known as and called a 'dwelling house.' The same is true of a dwelling house that becomes for a time vacant after being occupied by a family or person as a place of residence. Having been designed for and used as a dwelling house, it remains a dwelling house, though temporarily unoccupied, until converted to some other use. The several sections of the statute, supra, were designed to enlarge the powers of the courts in bringing to punishment all house breakers, no matter what the character of the house, or whether the crime be committed in the daytime or at night; whereas at the common law this class of offenders could be convicted only of larceny or burglary; the latter crime being 'the breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein, whether the felony be actually committed or not.' Bouvier's Law Dictionary, 227."

This construction of the statute, to which we adhere, compels the rejection of appellant's contention that the nonoccupancy of the dwelling house entitled him to an acquittal.

Ground 2 of appellant's complaint raises the question whether the rejection of his plea in bar based upon his acquittal under a former indictment was error? It appears from the record that only a few days before appellant's trial under the indictment in this case another had been returned against him in the Fayette circuit court, charging him with the crime of feloniously breaking into and entering a storehouse, the property of Joe Dinnelli, and taking therefrom with felonious intent to convert the same to his own use the same property described in the last indictment. His trial under the first indictment resulted in his acquittal; the verdict to that effect having been returned by the jury in obedience to a peremptory instruction from the court, which instruction was given upon the ground that the house charged to have been broken into and entered by appellant was shown by the proof to be a dwelling house instead of a storehouse, as charged in the indictment. This verdict and the judgment entered thereon were pleaded by appellant as a bar to his prosecution under the second indictment. Section 13 (Bill of Rights), Const., declares that no person shall, for the same offense, be...