92 P. 459 | Mont. | 1907
Lead Opinion
delivered the opinion of the court.
The defendant in this case was convicted in the district court of Silver Bow county of an attempt to commit the crime of burglary, and appeals. His counsel contends that the information filed against him does not state facts sufficient to constitute a public offense, for “the reason that the information does not show that the room the defendant entered was not his own. ’ ’
The charging part of the information is as follows: “That at the county of Silver Bow, state of Montana, on or about the 13th day of January, A. D. 1906, and before the filing of this information, the said defendant, Tom Mish, did willfully, unlawfully, and feloniously attempt to willfully, unlawfully, and feloniously enter that certain room numbered 59, in that certain house known as the ‘Mullin House,’ situate in Centerville, Silver
Our Penal Code, section 820, reads thus: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad ear, with intent to commit grand or petit larceny or any felony is guilty of burglary.” Burglary, as a common-law offense, was the breaking and entering of the dwelling-house of another, in the night-time with intent to commit a felony therein, whether the felony was committed or not. (State v. Copenhaver, 35 Mont. 342, 89 Pac. 61.) It was an offense against the habitation, and not against the property. (6 Cyc. 172; State v. Morrissey, 22 Iowa, 158.) But the attorney general contends that the nature of the entry is not material. He says in his brief: “The ownership of the building entered, and the ownership and value of the goods, are immaterial, except as matters of description. And if a man enters his own house for the sole purpose, and with the criminal intent, to steal the goods of another therein, he is guilty of burglary. At least, if the defendant at the time had the legal right and authority to enter the house, it is a defense, and not a matter of pleading.”
The opinion of the court in People v. Barry, 94 Cal. 481, 29 Pac. 1026, seems to support this contention. In that case the defendant was convicted of burglary in having entered a grocery store, by the public entrance, during business hours, with intent to commit larceny. The following instruction was requested by the defendant and refused, to wit: “The defendant cannot be convicted of the crime if he had a right to enter the store of Murry & Seegelkin at the time alleged in the information, even if you believe from the evidence that at the time he entered he intended to commit larceny.” The California statute defining burglary is identical with our own. The court in that case said: “Even under the present section of the Penal Code, many acts constitute burglary which but a few years ago were a different offense, or no offense whatever.
In the case of State v. Moore, 12 N. H. 42, above referred to, the defendant was convicted of burglary for having entered the barroom of a public inn while he was a guest at the inn, with intent to steal money from the cash box. The court, in setting aside a verdict of conviction, said: “The act of stealing is evidence of the intent to steal; but is hardly sufficient to rebut the presumption that where he lawfully entered he entered for a lawful purpose. To hold that, for a lawful entry, a party could be punished, because, after such entry, he does an unlawful act, would be to find him guilty of a crime by construction, a result which the law, in its endeavors always to ascertain the real intention of the accused, invariably, in theory, avoids, and which
Thus, it will be seen that these two cases embody the question we are considering, and decide it in different ways. We agree with the opinion of Judge De Haven, that, in order to constitute a burglarious entry, the act of entry must be itself a trespass. It may be that a man may burglarize his own house by entering therein, at a time when he has no right to enter, with intent to commit petit larceny or any felony. But, when the entry is lawful, what crime does he commit by simply having a felonious intent to steal? Our Code says that in every crime there must exist a union or joint operation of act and intent. If the act of entry by the accused is rightful, and the intent to steal is never executed, of< what is he guilty ? The fallacy of any other conclusion is brought forcibly to us when we consider that in the present case the defendant is simply accused of an attempt to commit burglary. Assume that the room was his own, and that, at the time, he had a right to enter it. He is then accused of attempting to do a lawful act with an unlawful intent, to be thereafter executed. The union of act and intent is wanting. If this is attempted burglary, wherein does it differ, in its elements, from an attempt to commit larceny? But the California court says, in effect, that the legislature has the power to declare a lawful entry with an unlawful intent burglary. Without deciding whether the legislature has the power to declare an act which is not malum in se unlawful, except in the reasonable
The ease at bar is somewhat different from either the California case or the one from New Hampshire, because it may be argued that no man has a right to enter either a grocery store or a barroom of another for an unlawful purpose; but a man may lawfully enter his own house or room at any time, provided he has not parted with the right to enter at that particular time, and the unlawfulness of his intentions with regard to acts contemplated by him after entry cannot, in a criminal case, characterize the rightful act of entry. (See note to The Six Carpenters’ Case, 1 Smith’s Leading Cases, Part 1, 259-264.)
We hold that the information should negative the idea that the defendant at the time of entry had the right to enter, or, in other words, should show that the entry was a trespass. It does not necessarily follow that the ownership of the room or building must be specifically alleged, although, where this is known to the pleader, it would be the safer practice to do so. The name of the person having the right of possession, other than the defendant, may be alleged, or, in the absence of such allegation, terms should be employed indicating that the defendant at the time of entry was a trespasser. (Wilson v. State, 34 Ohio St. 199; Beall v. State, 53 Ala. 460.) In the case of Commonwealth v. Perris, 108 Mass. 1, it was held that under a burglary statute that was silent as to the ownership of the building, the charge must aver that the building was the property of another than the defendant. We think, however, that a wrongful entry is all that is necessary to be alleged and proved under our statute.
In the ease at bar the defendant is accused of willfully, unlawfully, and feloniously attempting to willfully, unlawfully,
Again, it is urged by appellant that he is charged with having intended to commit larceny, and that this should be construed as an attempt to commit petit larceny only. He cites the case of Territory v. Duncan, 5 Mont. 478, 6 Pac. 353, where this court held that, in order to constitute the crime of burglary in the daytime, there must be a breaking and entering with intent to commit a felony, and consequently the facts which make up the constituent elements of the felony and which show the intent to commit the same must be alleged. The court also held that an allegation that the entry was made with intent to commit grand larceny, without averring the value of the property intended to be stolen, was insufficient. The burglary statute under which the defendant in that case was prosecuted read: “Every person who shall break and enter any dwelling or other house, with the intent to commit murder, rape or robbery, or any other felony, in the daytime, shall be guilty of burglary.” The court said: “It is not a felony and is not burglary, under this statute, to break and enter a dwelling-house in the daytime with intent to steal goods and chattels of less than $50 in value.” But our Penal Code (section 820 supra) makes it burglary to enter a house or room with intent to commit petit larceny, so that the Duncan Case has "no application.
The jury returned the following verdict in this case: “We, the jury in the above-entitled action, find the defendant, Tom Mish, guilty of the crime of attempted burglary, and leave the punishment to be fixed by the court.” The court imposed a sentence of seven and one-half years in the state’s prison. Defendant’s counsel argues that “the court could not find the degree of the crime,” and consequently could not pronounce a lawful sentence. Burglary, under our Penal Code, is divided into two degrees, viz., burglary in the night-time, which is bur
Section 1229 of the Penal Code reads, in part, as follows: “An act done With intent to commit a crime and tending but failing to effect its commission, is an attempt to commit that crime. ’ ’
Paragraphs 1 and 2 of section 1230 of the Penal Code provide:
“1. If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in the county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in the county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the offense so attempted.
“2. If the offense so attempted is punishable by imprisonment in the state prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.”
In charging burglary, it is not necessary to allege in the information the time of the entry (State v. Copenhaver, supra); but the jury, if they convict, must find the degree in accordance with section 2145 of the Penal Code. Section 2211 of the Penal Code provides that, upon a plea of guilty of a crime distinguished into degrees, the court must, before passing sentence, determine the degree. This provision, however, relates only to eases where a plea of guilty is entered. Neither the court nor jury could fix any degree of this crime because it has no degrees. The court fixed the punishment, and is presumed to have properly done so. The evidence is not before us. For aught we know, there was no controversy at the trial as to the time of
The judgment of the district court of Silver Bow county is . affirmed.
'Affirmed.
Dissenting Opinion
I dissent from that portion of the foregoing opinion, in which it is held that the verdict of the jury is sufficient.
Section 1229 of the Penal Code defines attempts. If there were a provision prescribing generally the punishment for such crimes, without reference to the punishments inflicted for the commission of the crimes themselves, a general verdict such as was returned in this case would be sufficient. Logically it would be responsive to every issue in the case. But section 1230, in adjusting the punishments to be imposed in such eases, does so with special reference to the punishments imposed for the consummated crimes. Now, burglary is distinguished into degrees; burglary in the night-time being of the first degree, and burglary in the daytime being of the second degree. (Pen. Code, sec. 820.) For the former the punishment is imprisonment in the state prison for not less than one nor more than fifteen years; for the latter like imprisonment for not more than five years. (Pen. Code, sec. 822.)
Section 2151, it seems to me, has no application to a case of this kind. It seems applicable to those cases only, excepting, •of course, judgments rendered upon pleas of guilty, wherein the jury have made every finding necessary to enable them to fix the punishment, but cannot agree upon the extent of it within the limitations prescribed by the statutes. In such cases, if they fail or neglect to fix it, the court may declare it, but not otherwise. If they fail to make every finding necessary for this purpose, the court may not, in my opinion, hear evidence or examine the evidence submitted at the trial and make an additional finding of fact, and then determine under which subdivision of section 1230 the punishment should be administered. The verdict is not responsive to one of the material issues in the case.
Eehearing denied December 11, 1907.
