Lead Opinion
Thе appellant was convicted of the crime of burglary, and appeals to this court from the judgment and order denying his motion for a nеw trial.
The most important assignment of error relied upon to reverse the judgment may be reviewed by a consideration of a certаin instruction which was requested to be given to the jury by appellant,, and which request was refused by the court. The proposed instruction was bаsed upon the evidence, which disclosed that the offense of burglary was committed,, if committed at
At common law, burglary was defined to be “ a breaking and entering of the mansion-house of another in thе night, with the intent to commit some felony within the same, whether such felonious intent be executed or not.” (Russell on Crimes, 785.)
It will thus be seen that common-lаw burglary and the statutory burglary of this state have but few elements in common, and consequently English cases give us but little light upon the question under examination. Even under the present section of the Penal Code many acts constitute burglary which but a few years ago were a different offense, or no offense whatever. As to the acts which shall constitute the crime of burglary, that is a matter left entirely to the policy of the legislature, within its constitutional powers; and when that body has said that every person who enters a store with the .intent to commit larceny is guilty of a burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of the entry, save that such entry must be accompаnied with a certain intent; and it
Appellant contends that a grocery store during business hours is a public place, and the defendant, as one of the public, hаd a legal right to be there, or rather to enter there; that the proprietors were doing business with the general public; the public werе invited to enter; that therefore the defendant entered under an invitation of the owners, and that consequently his entry was lawful, and there can be no burglary when there is a lawful entry. To this line of reasoning we can only say, a party who enters with the intention to commit a felony еnters without an invitation. He is not one of the public invited, nor is he entitled to enter. Such a part}'' could be refused admission at the threshold, оr ejected from the premises after the entry was accomplished. If the presence, of such a party in the store is lawful, the fact that he gained ingress openly and publicly through the front door rather than clandestinely by way of the skylight or the cellar is not material, and the result would be that no burglary could be committed in a store during business hours, regardless of the nature of the entry. As supporting contrary views, aрpellant relies upon State v. Newbegin,
Quite a similar state of facts were present in Clark v. Commonwealth,
In State v. Moore, 12 N. H. 42, the primary question.
The court refused to give to the jury the following instruction, asked by the defendant: “ The fact that a person attempts to steаl while in a building is not sufficient, without other circumstances proved, to cast on him the burden of proving himself not guilty of burglary.” It is only in cases of homicide, where certain conditions exist, that the burden of proof ever shifts to the defendant, and to that extent the instruction may be somewhat mislеading; but its plain intent is, that the single fact of a defendant being apprehended in a building while in the act of stealing does not, of itself, establish а prima facie case of burglary. The instruction states a correct proposition of law, and should not have been refused, especially in view of the peculiar facts of this case, where the entry was made during business hours, and by way of the public entrance. The instructions given upоn the question of intent do not cure the error; and it may be said they are somewhat confusing in respect as to whether they refer to thе intent with which the entry was made, or the intent of the defendant in manipulating the money-drawer.
Let the judgment be reversed and the cause remanded.
Paterson, J., and Sharpstein, J., concurred.
Concurrence Opinion
I concur in the judgment, but dissent from so much of the opinion of Mr. Justice Garoutte as seems to hold that one who enters the store of another with intent to commit larceny therein is guilty of burglary, although the entry was open, and with the actual and free consent of the owner. I do not think that this is a correct interpretation of our statute defining the offense of burglary. I think, in order to constitute a burglarious entry, the act of entering must be itself a trespass,—an intrusion into the building alleged to have been entered, an entry without the consent of the owner. (State v. Moore, 12 N. H. 42.) The evidence was wholly insufficient to justify the verdict in this case, and the jury should have been advised to acquit the defendant.
McFarland, J., and Harrison, J., concurred.
Dissenting Opinion
I dissent. I find no error in the record.