May v. State, 40 Fla. 426

May v. State

40 Fla. 426 | Fla. | 1898

Mabry, J.:

The plaintiffs in error and one James Hollins were indicted under the statute for breaking and entering a dwelling house with intent to commit a felony. Plaintiffs in error sued out a writ of error from the judgment entered against them, and have assigned three grounds of error in this court, but all are abandoned except the third, which is that the court erred in overruling the motion of defendants for a new trial. The only point insisted on under this assignment is that the testimony does not show a “breaking” into the house by the defendants. The contention is that it is made to appear from the testimony that the door of the house, through which it is claimed the defendants entered, was not at the time entirely closed, and that it would not constitute a breaking under the statute for defendants to push open a door not at the time entirely closed.

Two witnesses testified as to the situation of the door when the alleged entry was made. One stated that the *427door was closed, but had no fastening on it; that it was hard to shut or open, and when closed it had to be lifted up some to b¿ opéned. It was a heavy plank door and dragged the floor in shutting, and was hard to open, and it took a hard pull to open it. Witness states, in a general way, that defendants came to the house and broke in. She also states that she shut the door and it was nearly together; you might get your hand between it. The other witness, who was also sleeping in the house at the time, states positively that the door was shut, and the defendants shoved it open. She states, “the door was entirely shut when May and his crowd came; you could not stick your finger between the door and the facing.” On this testimony we should not disturb the conclusion of the jury that the door was entirely closed when it was pushed open, as positive testimony to this fact was before them. Conceding that there is some conflict in the testimony of the two witnesses, as to the position of the door, still the right of the jury to determine the conflict of evidence and the credibility of witnesses would settle the question in favor of a conclusion that the door was at the time entirely closed. It is not insisted that, in cases of burglary, the pushing open of a door entirely closed, though not fastened, would not be a sufficient breaking. Authorities cited by counsel for plaintiffs in error, as well as those referred to by the Attorney-General, hold that the pushing open of a door entirely closed would be a sufficient breaking to sustain a conviction, and this is, in our judgment, the law. 2 Bish. Crim. Law (8th ed.), § 91.

We find no error on the point insisted on here, and the judgment must be affirmed.

Enter judgment of affirmance.