22 Kan. 498 | Kan. | 1879
The opinion of the court was delivered by
Defendant was convicted, in the district •court of Atchison county, of the crime of burglary in the second degree, and from such conviction has brought this .appeal. /■
Counsel for the state has very clearly analyzed some of these cases, as follows: In Regina v. Johnson and Jones, 41 Eng. Com. Law, 123, all that the court pretends to decide is, that where a door was opened by an employé of the owner of the house, acting under the orders of policemen in waiting, and thereafter the accused entered through the door so opened, no burglary was committed. Certainly not; because the opening of the door was legally done by an authorized person,
The case cited in 40 Ala., p. 344, (Allen v. The State,) is precisely similar. The detective unlocked and opened the door with the keys furnished by the owner, who was the detective’s employer. Here there was no breaking. In this case, the defendant (Allen) was assiduously persuaded to engage in the enterprise by the detective, who was acting under orders from his employer. The defendant was reluctant to undertake and timid in the execution of the alleged criminal act; so reticent and fearful was he, in fact, that about all he did was
In the case cited in the 3d Texas Court of Appeals, p. 157, (Speiden v. The State,) no different rule is announced. In this case the detectives did the breaking by the procurement of the bank officials, who not only consented thereto, but paid the detectives to do their bidding in working up the case — a portion of the programme in doing which was to break open and enter the building. Afterward, the defendant Speiden entered, or rather was taken into the building by the detectives. The court held that there was not in law a burglarious breaking of the building, citing the above cases.
This analysis fully illustrates the principle we have noticed, and makes it clear that there was no error in the ruling of the district court, so far as this branch of the case is concerned.
In reference to the condition and fastenings of the door which defendant opened in entering the building, it appeared that ordinarily it was fastened on the inside by a bolt and a lock; that in the evening prior to the entry, the policeman told Marcus that he must leave it unfastened, as the parties expected would not break a lock; that in obedience to this direction, Marcus, though with some hesitation, left the door unfastened, but shut and latched. In that condition the defendant found it, and the only breaking consisted in lifting up the latch and opening the door. Was this a breaking within the meaning of the word, as used in the definition of burglary? That the lifting of a latch may, when that is the ordinary mode of fastening, constitute a breaking, will not
Some other matters are alleged as error by the learned counsel for appellant, but in none do we perceive any ground for disturbing the sentence, or any reason to doubt the guilt, of the defendant.
The judgment will be affirmed.