No. 2 | Mo. | May 8, 1900
At the October term, 1899, of the Dent Circuit Court, the defendant was indicted and convicted of burglary and larceny, and his punishment for the burglary fixed at three years’ imprisonment in the penitentiary, and for the larceny at two years’ imprisonment in the penitentiary.
After unsuccessful motions for a new trial and in arrest, defendant appeals.
The house into which defendant was convicted of breaking, was a small log house about fifteen or sixteen feet square, and was located in the woodland of one- Alexander Murry in Dent county. It had no flue or fireplace, but had one window, which however at the time of the burglary was boarded up. The house was built for and occupied by wood-choppers while chopping wood from the land near by. On the 28th day of April, 1899, and for several days prior thereto, one George Moore and another person were staying in said houses, eating, living and sleeping there. When absent from the house they kept it locked. On said 28th day of April, 1899, defendant broke into the 'house, by tearing some boards from the roof, and took, stole and carried away therefrom, a coat, vest and pair of pants, the property of George Moore, which cost, when new, from three dollars and fifty cents to four dollars,.
The first question presented for our consideration, is with respect to the value of the property stolen which defendant asserts must have been shown to be of some value at the time it was taken, otherwise the conviction of larceny can not stand.. As a general rule this may be conceded to be correct (State v.
Nor do we think there is any question but that the house described in the indictment, 'and which the evidence showed defendant burglarized, was a dwelling house within the meaning of section 35.21, Revised Statutes 1889. Moore ate and slept in the house at night, and made it his home, and it was none the less his dwelling house because it was owned by another person, by whose consent and permission he occupied it. And being occupied by him as a dwelling house, it must be held to have been such, for the use to which a house is put usually determines its character. [Davis v. State, 38 Ohio St. 506.] In Scott v. State, 62 Miss. 782, it is held that to render a building a dwelling house it must be a habitation for man, and usually occupied by some nerson lodging in it at night. And in State v. Jake, 2 Winst. 80 (N. C.), it was held that a log cabin belonging to the owner of a tobacco factory, in which the superintendent of the factory usually slept, was a dwelling house, in which burglary might be committed.
The building is described as being a small log house about sixteen feet square, 'substantial and permanent, and in that respect differs from a tent or booth erected in a market or fail’, in which at common law no burglary could be committed, although the owner may lodge in it. [1 Hale P. C. 557; Bishop on Statutory Crimes, sec. 280; Callahan v. State, 41 Tex. 43" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/callahan-v-state-4892103?utm_source=webapp" opinion_id="4892103">41 Tex. 43.]
The instructions covered every phase of the case, and seem to be free from objection.
Binding no reversible error in the record, we affirm the judgment.