87 P. 163 | Utah | 1906
This is an appeal by the state from a judgment rendered ,by the Eo-urth Judicial district court 'of Utah county. It ap
Section 4334, Revised Statutes 1898, so far as material in this case, provides that:
“Every person Who, in the nighttime, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment ... with intent to commit larceny or any felony, is guilty of burglary.”
In' 1905 the Legislature amended the sections of the statute defining burglary and housebreaking (Sess. Laws 1905, p. 16, e. 19), and, under the law as amended, we have burglary in the first and second degrees instead of burglary and housebreaking. Before amended, section 4334 made it burglary for a person to break and enter, etc.", “with intent to commit larceny or any felony.” As amended, the section reads “with intent to commit larceny or any other felony.” The only difference in the language of section 4334' as it
“The statute must be read as though instead of the words ‘or other felony’ it had been written ‘or any other offense for which the offender on conviction shall be liable by law to be punished by imprisonment in the state prison.’ ”
Continuing, the court says:
“We think the term ‘or other felony’ is not a limitation on what precedes, but is inserted to extend the scope of the section to other offenses not specifically named therein.”
In this connection it might be well to observe that evidently the intention and purpose of the Legislature, in amending the law defining burglary and housebreaking, was to overcome the embarrassment which so often arises in prosecutions for burglary where it becomes a doubtful question whether the crime was committed in the night or in the daytime. We think this conclusion is borne out by the concluding part of section 4336, as amended (Sess. Laws 1905, p. 16, e. 39), which provides that:
*171 “Where, in a prosecution for burglary in the first degree, the question as to whether the crime has been committed in the nighttime or in the daytime cannot be definitely arrived at by the jury, a verdict of guilty of burglary in the second degree may be found: provided, the ■other elements of the crime of burglary in the second degree have been proved.”
It is a matter of common knowledge that practically all offenses against tbe law of burglary are committed with intent to steal, and, in nearly all cases, except when the defendant is caught with the goods, the extent of the larceny which he intended to commit cannot be proved. Therefore, if the state should be required to prove a specific intent to commit grand larceny on the part of the offender when the, charge is burglary in the first degree with intent to steal, it would be, in the majority of cases, impossible to procure convictions, however guilty the accused might be. We do not believe the Legislature intended to put upon the state this burden and thereby, in effect, grant immunity from punishment to all criminals who may be charged with burglary in the first degree with intent to steal, for, as we have pointed out, it would be next to impossible for the state to, prove a specific intent' to commit grand' larceny, and, under the holding of the trial court, unless such intent is alleged and proved no conviction can be had.
The views herein expressed are supported by the following authorities, in which statutes similar to the one under consideration are construed: Hall v. State, supra; People v. Starpleton, 2 Idaho 50, 3 Pac. 6; Pooler v. State, 97 Wis. 627, 73 N. W. 336; Kelly v. People, 132 Ill. 363, 24 N. E. 56.
A jury having been impaneled and sworn to try the case, the defendant was thereby placed in jeopardy, and cannot again be tried for the crime charged in the information, or for any offense included therein. This appeal was taken and the case is decided for the sole purpose of determining the question of law involved.
Judgment reversed.