97 Neb. 9 | Neb. | 1914
Lead Opinion
An information was filed in the district court charging plaintiff in error, wrho will hereafter be referred to as defendant, with the crime of burglary, by breaking and entering into a public building in the city of Lincoln, known as the “Young Men’s Christian Association Building,” with the intent to steal property of value therein. A jury trial was had, which resulted in a verdict of guilty, when he was sentenced to pay a fine of $800 and the costs of prosecution, and that he be imprisoned until the fine and costs were paid. He brings the case to this court by proceedings in error; his principal contentions being that the court erred in certain instructions, and that the evidence is insufficient to sustain a conviction.
The evidence shows that there is a telephone booth situated in the office or the lobby of the building referred to, and that the first that was noticed of defendant being present was when he applied to the person in charge, at the clerk’s counter, and asked that the fan, which was running in the booth, be turned off, which was done, and the fan stopped. The defendant entered the booth as though for the purpose of telephoning to some one. The money drawer in the booth cabinet was connected by a secret wire to an instrument, termed a “buzzer,” at the clerk’s desk, so as to set in motion said buzzer upon the opening of the money drawer. The buzzer gave an alarm, when two of the men in charge hastened to the booth and found defendant therein, apparently in the act of telephoning to some one, the money drawer open with a. key protruding from the keyhole in the lock therein. The contention on the part of the state is that defendant must have’ broken into the main building, as all the doors by which an entry could have been made were equipped with strong springs, which automatically closed the doors upon any one passing through and releasing the open doors. There were no locks nor latches on the doors, they being held closed by the springs. While there is no direct evidence as to how or by what method defendant gained access, it is contended that he must have pushed open one
The Young Men’s Christian Association Building is a public building. In a sense it is similar to a hotel. The public is invited to enter. Meals are furnished at specified rates for all who may desire them. While nothing was stolen, it is contended that an attempt to rifle the money drawer was made, and that defendant was frustrated in1 the attempt. This might be true, and yet he may have been innocent of the breaking. The evidence shows that defendant was within the booth about 7 o’clock p. m. ; that he had prior to that time asked to have the fan turned off, and no. one testified to any knowledge of when or how
Complaint is made of instructions numbered 6 and 7, given to the jury by the court. They are here copied.
No. 6. “It is a familiar principle that a 'breaking’ necessary to constitute the crime of burglary may be any act of physical force, however slight, by which the obstruction to the entering is removed. The lifting of a hook with which a door is fastened, or the opening of a closed door in order to enter a building, is 'breaking’ within the accepted definition of burglary, although the entry might have been effected through a door already open.”
No. 7. “The jury are further instructed that, if in this case you believe beyond a reasonable doubt that the accused, Hayward, entered the building without unlocking the door, or without using force in opening a door so as to enter, then you will find defendant not guilty, and will acquit him of the crime charged.”
The principal objection to the' sixth instruction is to the closing or last clause thereof, to wit, “although the entry might have been effected through a door already open.” It must be conceded that the language might tend to leave one in doubt as to its meaning. If it meant that defendant would be guilty if he entered through an open door, the instruction is clearly wrong, for in that case there would be no “breaking.” If it meant that the fact the
The seventh instruction was, no doubt, an oversight on the part of the court, for it reverses the rule of law ap: plicable to the case. It was not necessary for the jury to believe beyond a reasonable doubt that defendant had not done the things charged in order to acquit him. The instruction is clearly erroneous. Flege v. State, 93 Neb. 610.
The judgment of the district court is reversed and the cause is remanded.
Reversed.
Dissenting Opinion
dissenting.
There is nothing in the point that the Young Men’s Christian Association Building was a public building and that from 6 to 7:30 in the evening a large number of people passed through the doors into the building. People who so pas? into the building do so by invitation of the Young Men’s Christian Association for lawful purposes. This invitation does not extend to one who desires to enter for the commission of a larceny. That the defendant entered the building for the purpose of committing a larceny is established beyond a reasonable doubt. The uncontradicted testimony shows that on the afternoon and evening in question the doors of the building were closed. Defendant entered the building through the door. There was no other way he could enter. In order to gain an entrance through the door, every reasonable probability is that he opened the door himself. No one saw him enter, and so it is held, in the majority opinion, that there is no proof of a forcible entry, so as to make the crime burglary. In order to reach this conclusion, the improbable presumption is drawn that some one, who was lawfully entering, may have, preceded the defendant into the building and
Instruction No. 6 could not by any possibility have prejudiced the defendant.
Instruction No. 7, quoted in the opinion, standing alone, might be held to have been prejudicial; but, when taken in connection with No. 8, which immediately follows it, it is idle to claim that the defendant was prejudiced. Instruction No. 8 reads: “The jury is further instructed that, in order to find the defendant guilty of the charge of burglary, it is necessary for the state to establish that, at the time that defendant entered the Young Men’s Christian Association Building, he had an intention of stealing property from said building, and that he forcibly broke into said building for the purpose of carrying out his intention to steal property from said building.” ■ This instruction clearly and properly told the jury what the state must prove to warrant a conviction, and, it following immediately after instruction No. 7, the jury could not have been misled.
The doors of the penitentiary should swing evenly. The outward swing is easy these days, and the inward swing should not be made too hard.
