United States v. Cooper, 71-1317.

• Decision Date: 08 November 1972
• Docket Number: No. 71-1317.,71-1317.
• Citation: 473 F.2d 95
• Parties: UNITED STATES of America v. Joe Henry COOPER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 95 (1972)

UNITED STATES of America v. Joe Henry COOPER, Appellant.

No. 71-1317.

United States Court of Appeals, District of Columbia Circuit.

Argued April 24, 1972.

Decided November 8, 1972.

Mr. Charles S. Vizzini, Washington, D. C., with whom Mr. Marvin R. Stern, Washington, D. C. (both appointed by this Court), was on the brief, for appellant.

Mr. James F. McMullin, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and John G. Gill, Jr., Asst. U. S. Attys., were on the brief, for appellee. Mr. Harold H. Titus, Jr., present U. S. Atty, also entered an appearance for appellee.

Before WRIGHT, LEVENTHAL and ROBB, Circuit Judges.

PER CURIAM:

Appellant Cooper was convicted of burglary in the second degree in violation of 22 D.C.Code § 1801(b), and sentenced on that count to serve two to six years. The case for the Government was that Cooper, an employee at a warehouse, secreted himself in the building after it was closed for the day at about 4:10 p. m. and was an accomplice of other men who came to the building late at night and removed two vacuum cleaners and their attachments through a broken window. Cooper was arrested at 3:30 a. m. when he was found in the basement of the building, crouched down between two boxes. The two alleged accomplices were arrested just outside the building, hard by the broken window, with the vacuum cleaners. Cooper testified in his defense that he had got drunk during the day, had gone to sleep in the building and had slept until just before he was found by the police.

We reject appellant's various contentions¹ save one, the objection to the following instruction:

Now, as to the first element of the crime, that they broke and entered or entered without breaking, you will recall that the evidence concerning Joe Cooper was that he entered the premises of the warehouse for purposes of going to work in those premises. Clearly, this is not an unlawful breaking and entry at that time. However, you can find that this was an unlawful entry without breaking if you find beyond a reasonable doubt that when he entered in the morning, he had the intent to remain after closing and to commit a crime, namely to steal; or if you find beyond a reasonable doubt that after entering lawfully, he formed the intent to commit a crime, namely, to steal, and remained on the premises after closing time to carry out that purpose.

In our view the court erred in charging that the jury might find that there was an unlawful entry without breaking "if you find beyond a reasonable doubt that after entering lawfully he formed the intent to commit a crime, namely to steal, and remained on the premises after closing time to carry out that purpose." The language of 22 D.C. Code § 1801(b) is in the footnote.² Under its plain wording, it is "crucial that the act of entering coincided, in point of time, with an intent, in the statutory language, `to commit any criminal offense.'"³ It suffices under the statute that the intent was to commit the misdemeanor of petty larceny.⁴ Indeed we have gone so far as to say that the crime is established by entry with intent to steal, though that intent was conditional on locating property the offender desired to remove.⁵ But the requirement of a criminal intent at the time of entry cannot be dispensed with altogether. The charge was therefore erroneous, and the conviction of burglary must be reversed. We do not consider whether one who enters a building lawfully and thereafter forms the intent to steal commits an unlawful entry, within the meaning of a burglary statute, if he enters a different room of the building with intent to steal. The instruction did not put the case to the jury on that basis.

If the burglary conviction were the only one before us, we would give consideration to the possibility that the jury had...