11 Nev. 30 | Nev. | 1876
The defendant was convicted of burglary, and on appeal from the judgment assigns numerous errors, most of which involve more or less directly the construction of the statute defining that crime. It is defined as follows: “Every person who shall, in the night-time, forcibly break'and enter, or without force (the doors or windows being open) enter any dwelling-house, tent, etc., with intent to commit murder, robbery, * * * petit larceny, or any felony, shall be deemed guilty of burglary,” etc. (Comp. Laws, sec. 2365.)
The position of the appellant is that there are two distinct crimes designated by the name of burglary; that is to say, to break and enter is one burglary or sort of burglary, and to enter, without breaking, through an open door or window is another burglary; and that a person indicted for breaking and entering cannot, on that indictment, be tried or convicted for entering without force. But we think if the first branch of this proposition were conceded, the second would not follow. On the contrary, it is expressly provided in our criminal practice act that, “In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included’ in that with which he is charged in the indictment, or he may be found guilty of an attempt to commit the offense charged.” (Comp. Laws, sec. 2037.) By virtue of this provision, a person indicted for murder may be convicted of manslaughter, and it is not a very bold exaggeration to say that we have had almost daily experience of such verdicts in this state without a suggestion ever having been made that they were unauthorized. If, then, a man, indicted for killing with malice, may be convicted of killing without malice, why may not a man, indicted for entering with force, be convicted of entering without force? If there is any principle by which the two cases can be distinguished, it exceeds our capacity to discern it. Upon this consideration alone most of the assignments of error appear to be totally without merit. But we choose to place our decision upon a broader ground.
.The necessary, if not the obvious, construction of the
Rejecting these words, then, as mere useless. tautology, the statute would read: “Every person who shall in the night-time forcibly break and enter, or without force enter,” etc., which is exactly equivalent to saying: “Every person who shall in the night-time enter with or without force; ” and as this makes the element of force wholly unessential, it is the same as saying: ‘ ‘ Every person who shall in the nighttime enter.” The truth is, the element of force had been so refined away by judicial construction, long before the enactment of the statute, that there was uo sense in retaining it as a constituent of the crime. It had been decided that the lifting of a latch, the lowering of a window-sash or the gently pressing open of an unfastened door, was a forcible breaking. It stood a mere shadow of a former substance in the law, serving only as the basis of subtle refinements and technical distinctions between acts that did not essentially differ in point of criminality. The intention of the legislature undoubtedly was simply to eliminate it from the definition of the offense. 'Why they should have resorted to such an awkward paraphrase of the simple language that would have expressed their intention without any ambiguity, is one of those things that are past finding out. It cannot be denied that our construction of the law does convict the legislature of extreme infelicity of expression, but to construe it as appellant does is to convict them of downright
The indictment in this case is for breaking and entering. Whether the proof sustains the allegation of force or not, it is, in view of the foregoing construction of the statute, unnecessary to decide, and we do not so decide, although we think it does. It is at all events not disputed that it sustains the allegations of entering in the night-time with intent to commit larceny. This being premised, we will examine the defendant’s exceptions seriatim.
Oix the trial of the case, the prosecution, after proving that certain articles, consisting of wearing apparel and bedclothes, which were in a room of a lodging-house in Winnemueca at nine o’clock at night, were missing in the morning, and that it was impossible for any one to have taken them without entering the room where they were, offered to prove by a policeman of the town that he had arrested the defendant between twelve and one o’clock the same night with these articles in his possession and under most suspi
Tbe remarks of tbe court in overruling tbe objection Avere not uncalled for. They explained, in perfectly appropriate language, the grounds of bis ruling, and this, if not necessary, Avas at least not improper. If courts contented themselves in ruling upon objections by saying simply, “I overrule your objection,” or “I sustain tbe objection,” it would often be impossible to conjecture the ground of tbe ruling, and it Avould lead to unnecessary repetitions of objections covered by tbe grounds of tbe first ruling. In order to save tbe court and counsel from thus acting at cross-purposes it is Avell for tbe court to explain its rulings, care being taken, in so doing, not to trench upon tbe province of tbe jury. It is not trenching upon tbe province of tbe jury to say that evidence has been given tending to establish a fact Avhich it clearly does tend to establish, and this was, in effect, all that tbe judge said.
Instruction No. 4 given by tbe court is not erroneous on tbe defendant’s own theory of tbe laiv. It does not instruct tbe jury that tbe defendant is guilty if be .entered and stole,
Instruction No. 1, given at request of the state, laid down the law correctly, and there is no question .that it was applicable. It did not instruct the jury that the defendant was guilty of burglary if he stole the goods, but that if he stole the goods that tended to prove that he committed the burglary, which it unquestionably did considered in connection with the evidence that they could not have been stolen without a burglarious entry of the house where they were.
The modification of instruction No. 1, asked by defendant was proper. The court was asked to instruct the jury that the defendant could not be convicted unless he entered by force. The court appended a definition of force which was correct and pertinent. The fault of the instruction as given is that it was too favorable to the defendant in sustaining his construction of the statute.
Of the modifications of instructions 5 and 13 asked by defendant, it may be said that their only effect was to relieve the instructions of any possible ambiguity, and to make their meaning more certain. It was proper, too, in connection with instruction 13 asked by defendant, to remind the jury that he was not on trial for larceny, otherwise they might have inferred from its language that they could convict of larceny, a verdict which the indictment would not have supported.
Instructions 4, 6 and 7, asked by defendant, and refused, were all erroneous because based upon his construction of the statute; and even if they had not been erroneous the court would perhaps have been justified in refusing them for the reason that their substance had been given in other instructions.
Having reviewed all the points urged by the appellant and discovered no error on the part of the court below, its judgment is affirmed.