Allen v. State, 40 Ala. 334

Allen v. State

40 Ala. 334 | Ala. | 1867

BYRD, J.

It is unnecessary to notice all the questions discussed in the voluminous brief of the counsel. We are satisfied the prisoner is not guilty of the offense charged in the indictment, upon the evidence set out in the bill of exceptions. It is difficult to conceive how a person can be guilty of burglary, who enters a house with a key voluntarily furnished him by the owner to enter, knowing at the time that the person wishes to enter to steal. It is in effect a consent to the entry by such person, and is not even a trespass.

The witness Watkins was the servant and agent of the owner of the house in this transaction; and in this case, whatever the agent did, in conformity to his instructions and general authority, must be treated as done by his principal. If, then, the owner of the house had been in the place of Watkins, and had done what the latter did to get the prisoner into the house, certainly such an entry would not have been a trespass, much less a burglary.

The prisoner put the key in the door, and, as the witness Watkins “thought, turned the bolt of the lock.” But his evidence shows that, soon afterwards, the witness himself turned the bolt, and called to Allen “ to come on,” and he followed the witness into the house ; and as he did so without any breaking, actual or constructive, he was not guilty of burglary, however felonious may have been his intent in entering. — 1 Hale’s P. C. 553-4. It is somewhat like a man being robbed by his own consent, although the supposed robbers did not know of the consent. — Reane’s case, 2 East’s C. L. 734; McDaniel’s case, Foster, 121.

But the following authorities are more in point to this case: 1 Bishop’s Crim. Law, § 570 (344); Egginton’s case, 2 East’s Criminal Law, 666; Regina v. Johnson and Jones, 1 Car. & Marsh. 218, (41 Eng. Com. Law R. 123.) These eases are very much like this, and the principles announced *342are applicable to the facts presented by the record before us. Allen neither opened the door, nor entered the house, until he was invited to do so by the servant of the owner; and he did no act, before or after he entered, which by our law is punishable criminally, so far as the evidence discloses ; but this does not lessen the moral depravity of his conduct.. After he entered, it seems that he had not the courage even to attempt the accomplishment of his intent, and left it to be done by his comrade and instigator, Watkins, his supposed accomplice.

In the case of Regina v. Johnson and Jones, (supra,) it appears that one Cole, who was groom to Mr. Drake, met with the prisoner Jones, and they entered into conversation about the badness of trade; and Jones said that he would not blame anybody who would rob another in these hard times, and asked Cole where his master kept his plate; and being told, said that, if, he would let him into the house, he would give him ¿6500. They agreed to meet again. Cole immediately told a policeman what had passed, and, his master being out of town, agreed to act under the directions of the police, in order to detect the prisoner Jones. Cole, Jones,'and Johnson, met, and it was arranged that Cole should get the servants out of the way, and admit the two prisoners. In the meantime, several policemen were secreted in the house. Cole went and fetched Johnson to the house, at night, and lifted the latch of the stable-yard door, and a little gate, and also the kitchen-door, and let Johnson in, and followed him into the back kitchen. Johnson then went up stairs, and as he was about to open the door of the room in which the iron chest was deposited, the police seized him before he had done anything ; and soon after Cole brought in the other prisoner in the same way, who went into the back kitchen, and took from it the plate basket containing the articles of plate mentioned in the indictment.

Maule, J., in summing up, (Bolfe, B., being present,) said: “It appears to me that, on the present occasion, according to the evidence, there was no such breaking as to constitute the crime of burglary. Cole, the groom, it is true, appeared to concur with the prisoners in the commis*343sion of- the offense. But, in fact, he did not really concur with them; and he, acting under the directions of the police, must be taken to have been acting under the directions of Mr. Drake, the prosecutor.” And it was held that neither Johnson nor Jones was guilty of burglary. This case is stronger in this, that here the owner actually gave the instructions to the servant, as also did the chief of police in part,

In Egginton's case, the prisoners applied to a servant of one Boulton, to aid them in robbing the house of his employer. The servant consented, and immediately gave information to Boulton; and he consented that the servant might carry on the business, and he (Boulton) would bear him harmless. The prisoners went at night, and the servant opened the door in the front yard. The prisoners entered the rooms where the plated business was carried on, and bolted the door; and then broke open the counting-house, which was locked, and the desks, which were also locked, and took from thence the ingots of silver guineas. They then went to the story above, into a room where the plated business was carried on, and broke the door open, and took from thence a quantity of silver, and returned down stairs, when one of them unbolted the door at the bottom of the stairs, which had been bolted on their going in, and went into the middle yard, where all but one were arrested by the persons placed to watch them. “ On this case, two points were made for the prisoner. First, that no felony was proved, as the whole was done with the knowledge and assent of Mr. Boulton, and that the acts of Phillips (the servant) were his acts. Secondly, that if the facts proved amounted to a felony, it was but a simple larceny, as the building broke into was not the dwelling-house of any of the persons whose house it was charged to be; and that there was no breaking, the door being left open. After conviction, the case was argued before all the judges in the exchequer chamber; and for the reasons above stated, all the judges agreed that the prisoners were not guilty of the burglary.”

It will be seen that one of the reasons, and the first assigned, was, that no felony was proved, as the whole was *344done with the knowledge and assent of .Mr. Boulton, and that the acts of Phillips were his acts. /

2. The record in this case shows, that the only witnesses who were present at the time of the entry of the prisoner into the office on the night of the 9th June, 1866, were examined on the trial, and that all of their evidence “ in relation to the alleged breaking and entering the office of Samuel Lyons ”, is set out in' the bill of exceptions; and as that evidence clearly shows that the prisoner cannot be convicted on the indictment, or of any other offense, under the law as herein announced, we deem it our duty upon this record, and the authority, conferred on this court by section 765 of the Penal Code, to reverse the judgment of the court below, and order the discharge of the prisoner from custody upon the indictment in this cause.