67 P. 790 | Utah | 1902
Tbe defendant was convicted of tbe crime of burglary, alleged to have been committed on July 2, 1901, by unlawfully and feloniously entering a store in tbe nighttime in Ogden, witb intent to commit larceny. Tbe evidence showed that on tbe second of July, 1901, tbe owner of tbe store closed it up and quit business for that day at 9:30 ■p. m., and opened it up again tbe next morning at 6:30 a. m., when be found that it bad been broken into, and some of tbe goods, which were all there when be closed at 9:30 p. m., were missing. On that day tbe sun arose at twenty-two minutes of 5 o’clock a. m. Later in tbe day, it appears, tbe missing goods were found in tbe possession of tbe defendant, who was trying to sell them. When arrested, tbe prisoner claimed be got tbe goods from another man. Such is tbe character of the evidence upon which tbe conviction of tbe offense is based. Tbe appellant insists that the evidence is insufficient to warrant tbe conviction. This point seems to be well taken. Section 4334, Revised Statutes, so, far as material here, provides: “Every person who, in tbe nighttime, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any bouse, room, apartment, .. . store, ... witb intent to commit larceny or any felony, is guilty of burglary.” Section 4338, Revised Statutes, reads: “Tbe phrase ‘nighttime,’ as used in this chapter, means tbe period between sunset and sunrise.” TJnder these provisions of tbe statute it will be seen that, even though a building of tbe kind mentioned be broken into and goods stolen, tbe offense does not amount to burglary unless committed between sunset and sunrise. Erom tbe evidence it appears tbe goods were stolen some time between 9:30 in tbe evening and 6:30 in tbe morning. But 6:30 a. m. is nearly two hours after sunrise; hence, if it be admitted that the defendant was'proven to have taken the goods, still it is impossible to say from tbe proof that be took them in tbe nighttime, for be may have taken them after sunrise and before 6:30 a. m. Nor are there any circumstances
The judgment is reversed, and the cause remanded.