State v. Clark

| Vt. | Jan 15, 1870

Decided at the January term, 1869. The opinion of the court was delivered by

Pierpoint, C. J.

We think the motion in arrest ^pis properly overruled ; in fact the objection to the indictment raised by the motion is not now seriously insisted upon. The principle seems to be well settled by authority, that in an indictment for burglariously entering, with intent to steal, it is not necessary to allege whose property the respondent intended to steal.

The first exception taken upon the trial was to the decision of the court allowing one Manley to sit as a juror in the trial of the respondent, against his objection. It appears that, upon beingenquired of, the juror said that he had expressed an opinion as to the guilt of the respondent, on reading a newspaper account of the examination of the respondent before the magistrate, some month or six weeks before; but that he has no opinion, and has formed none, and can try the case impartially on tlie evidence.

This question was before this court in the case of Boardman et al. v. Wood et al., 3 Vt., 270. That was a civil action, and the question arose upon the answer of a juror that he had formed an opinion, but did not know that he had expressed it. The court decided that to have formed an opinion did not disqualify a juror, but to render him incompetent he must have expressed that opinion.

Judge Williams, in delivering the opinion of the court, carefully reviews the authorities bearing upon the question, and shows very clearly and satisfactorily, that the rule, both in England and in this country, is that a juror who ha§ formed and expressed an opinion is disqualified, and that one who has formed an opinion without expressing it is not. So far as my experience and observation extends, this rule has been recognized and practiced upon, both by the courts and the bar, ever since, in this state ; and the practice, I think, has been the same both in civil and criminal cases. There certainly can be no good reason for relaxing the rule against the respondent in a criminal prosecution. In this case the juror says he expressed an opinion. That necessarily involves the forming- of one, as he could not otherwise express it. Having .formed and expressed an opinion he is thereby disqualified, unless what he further says shall have the effect to take the case out of the rule. It is not quite clear what the juror meant when he said tli^, at the time of trial, he had no opinion, and had formed none, after having just stated that a few weeks before he had expressed one. Probably these expressions should be taken in connection with the following one : that he could try the case impartially, and that what he meant was, that he had no opinion, and had formed none, that would prevent his trying the case impartially, and undoubtedly he thought so. Men are very apt to think they can try cases fairly, even though they have a strong feeling in favor of one side or the other; but whether a man, who has expressed an opinion on the subject to be considered, can try the question fairly or not, does not depend upon his own opinion of his impartiality. The rule of law is that he cannot, or at least that the parties shall not, bé required to take the risk.

We think the respondent had the right to have the juror discharged.

The question put to Burton we think was a proper- one. The question was evidently an introductory one. If the witness answered in the affirmative, the question would then be what he had lost, and under what circumstances, and what connection the respondent had with the loss ; and all other matters connected therewith tending to show the intent with which the respondent made the entry. It might be difficult to embrace all you expect a witness to testify to in one question, and still more difficult for the witness to answer such an one understandingly, when put. We think the court was right in refusing to withdraw from the jury the evidence as to the forceps. It appeared that Burton’s door was locked when he went to bed ; when he awoke the door was unlocked, and the respondent in his room. There was evidence tending to show that the forceps found in the wood-box had been used upon the key in the lock on Burton’s door; and although Salisbury and Burton did not see him throw them into the box as he passed, still he might have hidden them in the wood-box after he had turned the key in the lock, and before he entered the room, so that, if he was caught, the instrument by which he effected the entrance would not be found upon him.

It is insisted that the court erred in refusing to charge the jury that if they found that the respondent was lawfully within the house as a guest, his going from his own room and breaking into Barton’s room, etc., would not constitute the crime of burglary. j{ The respondent was in a hotel, a place into which all travelers ' have a right to enter, certain parts of which are ordinarily appro- I priated to the use of all the guests in common; other parts -are j appropriated to the exclusive use of the landlord, or are assigned ■ to the exclusive use of particular guests, and to these -parts no other person has the right of entry solely upon the ground that they are guests. If a person, so being a guest in a hotel, breaks into other parts of the house where he has no right to enter, for the purpose of committing a felony, it is burglary, the same as if he had broken in from the outside. Wharton lays down the - rule thus : “ A burglary may be committed by a breaking on the inside,for if a thief enter the dwelling-house in the night time through an outer door being left open, or by an open window, yet if, when within the house, he turn a key, or unlatch a chamber door, with intent to commit a felony, this is burglary.” So “ when a servant, who sleeps in an adjacent room, unlatches his master’s door, and enters his apartment wirh intent to kill him, or to commit a rape on his mistress, it is burglary.” And he cites numerous ^authorities in support of these propositions. He says further, that “ whether a guest at an inn is guilty of burglary by rising in the night, opening his own door, and stealing goods from other rooms, has been doubted.” The doubt in this latter case, I apprehend, arose from the fact that the only breaking - consisted in the guest /opening his own door, which he had a right to do for a lawful purpose. Thus it appears that a man may commit burglary by breaking into one part of a house to commit a felony, even though he is lawfully in another part of it, and that is precisely the case before us.

The charge of the court in respect to the time, whether night or day, was rather indefinite, and it is somewhat difficult to determine at what precise period, on any particular day in the year, the night ends and the day commences. At what time the respondent entered Burton’s room does not appear, but after he had been discovered, and the landlord aroused, the testimony agrees that it was half-past three. This, on the 3d of August, must have been nearly an hour and a half before sunrise. As all know, the period between the first dawn and sunrise, at that season, is much shorter than it is in the winter season. Taking these facts in connection with the testimony of Salisbury as to how dark it was at the time when he was aroused, we think the court were justified in telling the jury that if they found these facts as testified to, they would find that the offense was burglary.

Some other points were made by the counsel for the respondent, that we think do not arise on the exceptions.

Exceptions sustained, and a new trial granted.