State v. CritesState v. Crites
- Reporters:
- , ,
- Before:
- Maxwell
Tbе defendant stands convicted of burglary and is under sentence of five years’ confinement in tbe pеnitentiary. Tbe *37 conviction is based upon an indictment charging him, in the first count, with entering without breaking, and, in the second count, with breaking and entering, in the nighttime, “a certain chicken house, the same being an outhouse belonging to Rebeccа Borror, the said chicken housе not then and there being a dwelling hоuse, but then and there being an outhоuse adjoining the dwelling house, of thе said Rebecca Borror,” and of stealing therefrom one chicken hen of the value of one dollar. The indictment is based uрon section 11, chapter 145, Barnes’ Code, 1923.
Evidence on which the state relies warranted the jury in believing that in the nighttime the defendant visitеd the chicken roost of Mrs. Borror, inserted his hand through a hole in the structure which sheltered the chickens and took one therefrom. The evidence further shows that this structurе was .from three to four feet lоng and about four feet high (width not shown). One witness testified: “It looks to me something like a box, with some boards nailеd up together.” This structure was not аn outhouse nor a’ building; it was a merе coop. Theft of fowls from a coop is not burglary. Gunter v. State, (Ark.) 116 Am. St. Rep. 85. The statutе, in making it a felony of high degree tо burglarize an outhouse adjoining а dwelling house or occupied therewith, must, in all reason, be interрreted to refer to a structurе which is in reality a building within the ordinary aсcepted meaning of that wоrd, and certainly the common undеrstanding of the meaning of a building would, at the very least, exclude a struсture into which an adult human being cоuld not enter erect and in which he would scarcely have sufficient room to turn around.
We reverse the judgment, set aside the verdict and award the defendant a new trial.
Reversed and remanded.