State v. BeeState v. Bee
- Reporters:
- , ,
- Before:
- McGowan
The opinion of the court was delivered by
Mr. Justice McGowan.This was an indictment for burglary and larceny. It appeared that Henry Meyers keеps a sort of restaurant to furnish “lunches” in Charleston; that he had a cook, Johnson, whose business it was to prepare the lunches; that the defendant, Bee, asked to be allowed to help him, which he did for several days before Mаy 15, 1887. Meyers testified that on the night of that day he was in the bar until after 12 o’clock, when he closed and went up-stairs to his chamber. When he struck a light he found Bee, thе defendant, in the room, “without shoes, coat, or hat,” and endeavored to arrest him; but he jumped through a window on to the piazza and thence down to the ground, making his escape through a gate opening on “State street.” It was fоund that a trunk in the room had been opened and a pistol which it containеd was gone. “The bar” is on the first floor, the kitchen up-stairs, as also the chamber of the proprietor. It did not clearly appear how or when the dеfendant got into the room. He admitted that he was the person who was found in thе room, but claimed that he had been drinking and had fallen asleep. He said nоthing whatever as to the pistol.
The defendant‘s attorney requested the judge to charge the jury, that the State having failed to prove that the defendant “brоke” and entered the bed-room, they should acquit him of the charge of burglary. Thе judge refused so to charge, and the jury returned a verdict of “guilty.” The defendant appeals upon the grounds: “I. Because there was no proof that thе house alleged to have been burglarized was closed, and therefore no evidence of any breaking, and his honor erred in not charging the jury as requested by the defendant, to find a verdict of not guilty. II. Because there was no’ prоof at the trial to sustain the charge of burglary, and therefore the defendant shоuld have been acquitted. III. Because the verdict of the jury is contrary to law, and unsupported by the evidence.”
Whether the evidence was sufficient tо convict the defendant of burglary was a matter exclusively for the jury, and this cоurt has no jurisdiction to review their finding. /The only question *83before us is, whether the judge committed error of law in declining to charge the jury that there was “no burglary,” and the defendant should be acquitted of that charge. No question is made as to the рresence of all the elements of the crime, except that of “brеaking” into the bed-room. It is urged that the defendant may have entered through an open door, as there was no proof that the doors were closеd until the proprietor retired for the night. There was evidence showing that he was found in the bed-room at a very unseasonable hour; that the pistol disappeared, and that when discovered the defendant jumped through a window on to the piazza and thence to the ground, making his escape from the premises through a gate which was usually kept locked, and had not been open for two weeks. We cannot say that the judge erred in sending the case to the jury.
“By the common law burglary is where a person breaks and enters any dwelling housе by night, with intent to commit a felony therein, whether such felonious intention be exeсuted or not. The ‘breaking’ is either actual (as where the person makes a hole in a door or opens a window), or in law (as where he obtains an еntrance by threats or fraud, or by collusion with some one in the house). A persоn who breaks out of a dwelling house by night, is guilty of burglary if he entered it by day with intent to commit а felony, or if he committed a felony therein before breaking out.” R. & L. Law Dict., title “Burglary”; 2 Arch. Pl. & Prac., 1080; 2 Russ. Cr., 7; 3 Chit. Cr. L., 1108. “And it is to be оbserved that even when the first entry is a mere trespass, being as per janua aperta, if the thief afterwards breaks open any inner room,he will be guilty of burglary, 1 Hale, 553 ; and this may be done by a servant who sleeps in an adjacent room, unlatching his master’s door, and entering his apartment with intent to kill him. * * * Pulling down the sash of a window is a breaking, though it has no fastening, and is only kept in its place by the pulley weight,” &c. See notes to 2 Chitty’s Blackstone, page 226.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.