98 Mich. 26 | Mich. | 1893
The respondent was convicted of burglary under section 9132, How. Stat.
The evidence on the part of the people tended to show that the owner of the dwelling-house occupied the front room for a shoe shop, and the rear and overhead part as a dwelling. The shop was upon the ground floor, and had two windows, each about four feet from the ground. These windows had double sash; were without pulley weights; were fastened when raised, and bolted when down, by stops operated by springs. When the windows were closed, the springs threw the bolts into the slots in the cases, so that the window could not be raised without drawing the bolt. One of these windows was opened during the night of October 8, and three pairs of shoes were stolen. The owner closed the shades on the night of the 6th, and did not notice that the window was raised even an eighth of- an inch; On the morning of the 9th, on opening his shop, he found the window raised about 3|-feet. The respondent called at the house on October 6, between noon and 2 P. M., and asked for dinner. He asked permission to step into the shoe shop for the purpose of changing his pantaloons. This request was granted. The window was not broken. If the bolt was in the slot, the window could have been raised from the inside only. On Monday following the burglary, respondent had in his
It is contended on behalf of the respondent:
1. That no breaking or entering in the night-time was established.
3. That this shop was not a part of the dwelling-house.
3. That if the window was partially raised on October 6, and was further raised on the night of the 8th, the crime was not established.
, We think the motion was properly overruled, and the case 'properly submitted to the jury.
“If an entry is effected by raising a trap-door which is kept down merely by its own weight, or by raising a window kept in its place only by pulley weight, instead of its own, or by descending an open chimney, it is admitted to be enough to support the charge of breaking; and I am unable to see any substantial distinction between such cases and one where an entry is effected through a hanging-window over a shop door, and which is only designed for light above, and for ventilation, and is down, and kept down by its own weight, and so firmly as to be opened only by the use of some force, and so situated as to make*30 a ladder, or something of that kind, necessary to reach it for the purpose of passing through it.”
We think the doctrine there enunciated covers the pres" ent case. If there had been no bolt, and respondent had raised the window and entered in the night-time, under all the authorities, he would have been guilty of burglary. Upon what reason can it be said that his removal of the bolt, or his raising the window a fraction of an inch, in the day-time, changes the character of his offense? If the owner had failed to see that the bolts were in place, or if something had been accidentally placed upon the window sill, which was of slight thickness, but sufficient to prevent the bolts from entering the slots, the raising of the window would have been a sufficient breaking to support the charge. Rex v. Hyams, 7 Car. & P. 441; State v. Reid, 20 Iowa, 421; Lyons v. People, 68 Ill. 280. How can the act be relieved of criminality by secretly fixing the window in the day-time so that the bolt or lock will not be effective, and thus render the perpetration of the crime more easy and certain? There is no reason in such a rule. In Lyons v. People, the door was left unlocked, and the court was requested to instruct the jury that, in order to constitute the crime, it must appear that the door was secured in the ordinary way. The supreme court, in determining the question, said:
“We are not aware of any authority which goes to the extent of these instructions. To hold that the carelessness of the owner in securing and guarding his property shall be a justification to the burglar or thief would leave communities very much to the mercy of this class of felons. It would in effect be a premium offered for their depredations, by the removal of the apprehension of punishment. Whether property is guarded or not, it is larceny in the thief who steals it. When a door is closed, it is burglary for any one, with a felonious intent, to open it, and enter the house, in the night-time, without the owner’s consent; and it makes no difference how many bolts and bars might have been used to secure it, but which were neglected.”
Judgment affirmed.