82 Wash. 44 | Wash. | 1914
The defendant was convicted upon a charge of burglary in the second degree. He appeals from a judgment pronounced upon the verdict of a jury. His counsel assigns several errors, which are argued under two heads, to the effect that the court erred in permitting certain evidence offered on behalf of the state, and in denying a motion to dismiss at the close of the state’s evidence, in refusing to direct a verdict at the close of all the evidence, and in denying the appellant’s motion for a new trial.
It appears that the appellant was employed by the Pierce Harness Company, from about May, 1912, to July, 1913, as a cutter in the harness shop conducted by that company, in Spokane. At the time the appellant was employed by Mr. Muffett, manager of the harness company, a key was given to the appellant which permitted him to enter the store and harness shop. At the time the key was given to him, it was stated that he was to open up at about seven o’clock in the morning. Thereafter, in January, 1913, an invoice of the
It is argued by the appellant that it was error for the court to permit evidence relating to the padding of the invoice, or
“Upon the trial of an indictment, a previous crime committed by defendant can be proved only: (a) Where it is connected with the one charged in the indictment, and sheds light upon the motive of the defendant; or (b) where it forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts; or (c) in cases of conspiracy, uttering forged instruments or counterfeit coin, and receiving stolen goods, for the sole purpose of showing a criminal intention.”
This court has held to the same effect. In State v. Pittam, 32 Wash. 137, 72 Pac. 1042, it was said:
“It is a well-established rule that it is not competent to show the commission by the defendant of ¡other distinct crimes for the purpose of proving that he is guilty of the crime charged; but, for the purpose of construing the actions or of ascertaining the intent of the defendant in the commission of the acts proven, other independent culpable acts are sometimes admissible in evidence. . . . We think it was competent to show that in the general scheme he adopted in keeping his accounts with his employer, the result was the appropriation by him of the funds of the employer; not for the purpose of prejudicing a jury against him by proving the commission of independent crimes, but to throw light on his intentions in the perpetration of the particular transaction constituting the crime charged.”
And in State v. Dana, 59 Wash. 30, 109 Pac. 191, we said:
*48 “Of course, if the offered testimony was relevant to the issues in this case, the fact that it tended to show the commission of another and different crime would not exclude it.”
And in State v. Leroy, 61 Wash. 405, 112 Pac. 635, we said:
“Testimony otherwise relevant does not become incompetent because it may tend incidentally to show that the accused has committed another crime.”
It is true, the statute provides at Rem. & Bal. Code, § 2580 (P. C. 135 § 653), that every person who shall unlawfully break and enter any building where property is kept for use, sale or deposit shall be deemed to have broken and entered with intent to commit a crime therein, but this does not prevent the state from showing the intent of the person breaking and entering. The effect of the evidence which was introduced was to show a course of conduct on the part of the appellant. The padding of the inventory, the concealment of goods which were afterwards taken away, the fact that the appellant entered the store when no one else was present, and out of hours, and took articles from the store, tended to show the intent of the appellant upon entering the store at unusual hours, and upon the occasion charged. We are clearly of the opinion that, for the purpose of showing intent, the course of conduct of the appellant was properly in evidence in this case, and falls within the exception to the rule rather than within the rule.
It is next strenuously argued by the appellant that the court should have granted the motion for a directed verdict at the close of the state’s evidence, and at the close of all of the evidence. This argument is based upon the fact that the appellant was furnished with a key to the premises, and therefore had a right to enter the building whenever he saw fit, and that there could be no breaking, and therefore no burglary, when the entry was with the consent of the owner of the building, or upon his invitation, express or implied. There can be no doubt that, if the furnishing of the key to the
“If one having the right to do so goes into a building, that would not be breaking and entering, no matter what his object was in going into the building. One’s right to enter a building may be general or limited. If general, then he may go into the building at any time or for any purpose and the entry would not be wrongful; but if the right is limited, then an entry would be wrongful unless made for a purpose for which he had been given the right. It will be your duty to determine from the evidence in this case whether the right which the defendant had in going into the building was general or limited. If you find that the defendant’s right to enter was general, that is, not restricted to purposes of his employment, then he could not be found guilty of burglary, no matter what his object may have been in going into the building. In order to prove the defendant guilty as charged in the information it will be necessary for the state to show that the entry was wrongful, by the evidence, and beyond a*50 reasonable doubt, and to show that it was wrongful the state' must show that the defendant’s right to enter the building was not a general and unrestricted right, but one that was limited; and they must further show that the defendant entered the store on May for some purpose other than that for which he had a right to enter.”
The instructions were not excepted to, and are apparently conceded by the appellant to have been proper. This was the principal question in the case. If the appellant had the right to enter the store by the use of his key at any time in the day or night, that is, had an unrestricted and unlimited right of entrance, he could not be guilty of the crime of burglary, even though he carried away the goods from the store. In such event, the crime would be larceny, and not burglary. But if his right to enter was limited to the usual hours of employment, and after hours of employment, he used the key for the purpose of entering the store with intent to unlawfully take articles therefrom, he was clearly guilty of burglary. 6 Cyc. 180, and cases there cited.
We are satisfied from the whole record that the evidence offered was admissible in this case, and that there was sufficient to take the case to the jury, and that the court did not err in denying the motions made by the appellant.
The judgment is therefore affirmed.
Crow, C. J., Fullerton, Parker, and Morris, JJ., concur.