Frоm a conviction of the crime of feloni-ously entering, with intent to commit larceny, the garage occupied and used by one Edward U. Glenn, the defendants appeal. No evidence wаs offered by them, hut they claim that the case made out by the government was not sufficient to establish their guilt, and that tbe court erred in not sustaining their motion for a directed verdict. This is the only point prеsented for our consideration.
At the time of the offense charged Glenn rented a garage located in the rear of 1515 R. Street N. W., Washington, in which he kept his automobile and its accessories. He permitted another person to
In the light of it we may inquire: Who pulled the stаple and then opened the doors, and with what intent were these things done? Why were the defendants there, and why did they not give some reasons for their presence? Why did they come to the garаge in an automobile ready to swiftly carry away tires, tools, etc? Would men bent on an honest mission have acted so? True, they took nothing, but this is immaterial. They were not charged with taking anything, but with the intent to do so. It is said that, since we held in Ambrose v. United States, 45 App. D. C. 112, 123, an embezzlement case, that the mere fact of taking should not raise the presumption, of a felonious intent, the mere fact of entering the garage should not have that effect. This is quite right, but not apropos. It ignors the circumstances under which the entry was made. There is much more here than the mere entering.
We are reminded of the well-established and oft-repeated principle that, unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused, and, where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a conviction. But it is not applicable here, because the facts established are such that the jury was fully warranted in deducing from them inferences which excluded every other hypothesis but that of guilt.
In People v. Soto,
“When there is no other reason for breaking into our neighbor’s house near the hour of midnight, if we do it at all, we are after his property or his mоney.”
To be sure we have no contradictory statements here, but the failure of the defendants in the circumstances to give any reason for their presence is just as significant. We think .the evidence was quite enough to require the case to be submitted to the jury upon the question as to whether they were guilty of breaking a.nd entering with the intent alleged.
The defendants argue that there is a variance between the proof and the indictment, in that they were charged with entering a building’ oсcupied ?nci used by Glenn, whereas it appears that, by his permission, it was also occupied by another person. Manj cases are cited in support of their contention. We havе read them, and we are convinced that none is in point. It is not our purpose to review each. We take only a few typical ones. They are Adams v. State,
It was ruled in the Adams Case that the ownership of the premises in an indictment for burglary should be laid, not in the holder of the legal, title, but in him who had. occupancy or possession when the offense was committed, unless the oсcupant was a mere servant, in which case the ownership should be laid in the master. The McCray decision holds that in a prosecution for breaking and entering, where the indictment charges thаt the defendant broke in and entered a store owned by one Simonoff, there is no variance, though the testimony shows that Simonoff was not the legal owner, but a lessee, of the building. And People v. Carr says that an indictment charging that the defendant entered with burglarious intent a certain building, the room of Scharf, in a hotel, was sufficient, although it appeared that Schat-f did not own the hotel. State v. Burton and Ullman v. State are to the same effect. A glance at these decisions will show that they have no bearing on the question before us.
On the other hand, there are many authorities which in principie support the proposition that there is no variance in the instant case. In an indictment for burglary, the ownership of the house was alleged to be in one Bullard; the proof еstablished ihis, but also showed that at the time of the burglary Bullard’s son, with the permission of his father, was storing corn in the house. This did not constitute a vari-
“We regard the authorities as uniform in holding that the person inhabiting and in possession, either exclusively or in common with others, and having the general charge and control of such building, will be deemed the own- or thereof within the meaning of the criminal law relating to burglary.”
The evidence under review tends to show, if it does not clearly establish, that Glеnn had general charge and control of the garage. East, in his Pleas of the Crown, p. 500, said a long time ago that:
“Where the, legal title to the whole mansion remains in the same person, there, if he inhabit it either by himself, his family, or servants, or even by his guests, the indictment must lay the offense to be committed against his mansion. And so it is, though he let out apartments to inmates, who have a separate intеrest therein, if they have the same outer door or entrance into the mansion in common with himself.”
See, also, 1 Hale’s P. C. 557; 1 Hawkins’ P. C. 134.
The purpose of the law in requiring the name of the person who occupied and used the building entered to be stated is to negative the defendant’s right to break and enter, and to protect him from a second prosecution for the same offense. Adams v. State, supra; State v. Trаpp, 17 S. C. 467, 470,
In many of the books nice distinctions are made with respect to what indicates a variance; but we have said in Kemp v. United States, 41 App. D. C. 539, 548, 51 L. R. A. (N. S.) 825, that the old technical rules of plеading in criminal cases, inherited from ancient England, have been greatly relaxed, and have been supplanted by the more recent rule that only material and substantial variances between the pleadings and proofs will be regarded. We think that, according to the
The judgment must be, and it is, affirmed.
Affirmed.