79 Ky. 560 | Ky. Ct. App. | 1881
delivered the opinion of the court.
This is an appeal from a verdict and judgment of acquittal on an indictment for house-breaking, the-penalty for which is confinement in the penitentiary from one to five years.
The first question is as to the power of this court to review the rulings of the lower court upon judgment of acquittal in felony cases. It was held in Commonwealth v. Cain, 14 Bush, and we now hold, that such judgments may be reviewed on the appeal of the commonwealth for the purpose of securing a uniform and correct administration of justice, although the judgment cannot be reversed. This we think is the proper construction to be given to sections 33S. 337> an6 339 of the Criminal Code.
The specification in the indictment is to the effect that appellee broke and entered into a certain store-house with the felonious intent to steal therefrom. The evidence
The court instructed the jury, that if they believed, from the evidence, that the grating removed by the accused was not a part of the store-house, they should acquit. The only question is as to the correctness of that instruction.
Whether the place of ingress in such cases, which are analogous to burglaries at common law, is a part of the house charged to have been broken into, is a question of law for the court, and not a question of fact proper to be submitted to the finding of a jury; and, therefore, if, as a matter of law, the grating removed was a part of the storehouse, it was the duty of the court to tell the jury that such entry was a breaking within the meaning of the statute.
As a general rule, where there is internal communication between the room or apartment broken into and the room or building into which the accused is charged to have feloniously entered, such entry completes the offense denounced by the statute, so far as the act of breaking and entering is concerned. (Bishop on Statutory Crimes, sec. .282.) In this case there was such internal communication, and the facts of the case are within the rule stated.
The judgment of the lower court must stand, but the clerk will certify this opinion as containing the law of the case. ' —
