Price v. Commonwealth, 112 S.W. 855

Price v. Commonwealth

112 S.W. 855

Ky. Ct. App.

1908

Check Treatment

Opinion of the Court by

Judge Nunn —

Reversing.

Appellants were indicted, convicted, and sentenced, to serve two years in the penitentiary for the violation of section 1163 of the Kentucky Statutes of 1903, which is as follows: “Any person who shall forcibly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍break and enter intо any railroad depot, car factory,, station house, railroad сar, or express car, with intent to kill or rob any person therein, or to stеal property, money, or anything of value therefrom,. *718shall be deemеd guilty of felony, and punished by confinement in the penitentiary not less than two nоr more than ten years.” From the evidence of the Commonwealth it is reasonably certain that appellants broke the seal of the car with the intention of entering and stealing some whisky therefrom; but it is not intimated that they оr either of them entered the car. The statements of the witnesses for the Commonwealth upon this point were to the effect that they saw appellants break or cut the seal on the car door and slide it baсk a little, when they heard a train coming and pushed the door back in place, walked away 15 or 20 feet, and then were arrested. The statute is: “Any рerson ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍who shall forcibly break and .enter into any railroad depot,” etc., “with the intention to steal property,” etc., “therefrom.” The statute dоes not authorize a conviction for the breaking of the car with the intent to steal therefrom, but there must also be an entering of the car for that purpose. However, we do not construe the statute as meaning thаt there should be an entering of the whole body into the car, but an entry into thе car, however slight, such as putting the hand through the opening with the intent to steаl property, etc., therefrom, would be an entry'in the meaning of the statute; but the evidence for the Commonwealth fails to show the slightest entry of the car.

The Attorney General cites the cases ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Darter v. Commonwealth, 5 S. W. 48, 9 Ky. Law Rep. 277, and Cunningham v. Commonwealth, 13 S. W. 104, 11 Ky. Law Rep. 783, as sustaining the action of the lower court. The question under consideration in the ease at bar was not considered in the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cases referred to. There are some careless expressions in those opinions that seem to sustain appellee’s contention. *719In, the Darter Case the indictment failed to allege the place where the car wаs broken and entered, and also failed to allege to whom the cаr belonged; and these were the only questions considered in that casе. In the Cunningham Case the indictment failed to allege that the person forcibly broke and entered the car. The allegation was that he “wilfully” broke and entered the car. The only question considered in that case was whether the use of the word “wilful,7 instead of “forcibly,” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍made the indictment insufficient. We hаve found no ease where the question in the case at bar has been considered by this court. The statute requires both a breaking and entering with the intention to steal to constitute the offense; and in our opinion, under this languаge, the failure to prove the entering is just as fatal as a failure to рrove the breaking. The offense charged is a statutory one, and the indictment must follow it and the proof sustain it to authorize a conviction.

On anоther trial, if there is a failure of proof as to-the entering of the ear, the court will instruct the jury for the offense of trespass as defined in sectiоn 1256 of the Kentucky Statutes of 1903. See section 264 of the Criminal Code of Praсtice and the case of Commonwealth v. Willie Wells, 33 Ky. Law Rep. 964, 112 S. W. 568 (the opinion in which was delivered the 23d day of September, 1908).

For these reasons, the judgment of thе lower court is reversed and remanded for further proceedings consistent herewith.