Summary
In Holderfield v. State, 215 Miss. 564, 570, 61 So.2d 385 (1952), we held that under certain circumstances there can be no breaking and entering, and therefore, no burglary, where the occupant of a building consents to the entry at the time the offense is committed.
Summary of this case from Mason v. StateOpinion
No. 38523.
December 8, 1952.
1. Criminal procedure — burglary — larceny — verdict.
Under an indictment for burglary and larceny a verdict of guilty as charged is a conviction for burglary.
2. Criminal law — burglary — essential elements.
The crime of burglary consists of two essential elements, viz.: (1) the burglarious breaking and entering of the house, and (2) the felonious intent to commit some crime therein.
3. Criminal law — burglary — corpus delicti.
The corpus delicti in burglary is the criminal breaking without the consent of the owner for the purpose of committing some crime within the burglarized house.
4. Instructions — burglary — consent of owner.
The fact that one who enters a building with the consent of the owner commits a larceny after the entry does not make him guilty of a burglary; wherefore an instruction in a prosecution for burglary and larceny which permitted a verdict of guilty as charged, although there was permission to enter, if on the entry the accused committed larceny, was reversible error.
5. Instructions — burglary — irreconcilable conflict.
Where, in the case mentioned in the foregoing headnote, the court granted at the request of the accused an instruction that he could not be convicted of burglary unless beyond a reasonable doubt he entered without the consent of the owner, there was an irreconcilable conflict and the jury was furnished no correct guide.
Headnotes as approved by Arrington, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
John R. Poole, for appellant.
I. The State failed to prove the corpus delicti of burglary in failing to prove a "felonious and burglarious breaking"; failed to prove want of consent of the alleged owner and occupant of the property; thus the appellant was denied due process of law under Sec. 14 of Mississippi Constitution and denied his rights under the equal protection of the laws clause and the due process of law clause of the 14th Amendment to U.S. Constitution; and denied a fair and impartial trial.
It appears that the trial court had an erroneous impression in granting the first instruction. It states, substantially, that if the jury believed, etc., that the "defendant Leon Holderfield had permission to enter the building" then if he unlawfully, feloniously and burglariously broke and entered, etc., he was guilty as charged — that is, of burglary. That is not the law in this state. Note Sec. 2036, Code 1942, carries "breaking and entering"; Sec. 2038, Code 1942, "breaking and entering"; Sec. 2039, Code 1942, "breaking out"; Sec. 2040, Code 1942, "breaking of door"; Sec. 2041, Code 1942, "breaking inner door"; Sec. 2043, Code 1942, under which the charge here is laid, "breaking and entering." It is the breaking, in this state, that constitutes the primary element of the corpus delicti, and no person can be legally convicted of burglary unless there is a "breaking," and there is no such thing in this state as breaking into a building when one has permission and consent of the owner and a key given him as authority to enter. And Scoggins has said here appellant had been given a key.
"Breaking and Entering: To prove the corpus delicti, the evidence must be sufficient to show affirmatively and beyond a reasonable doubt that there was such a breaking and entry as are necessary to constitute burglary . . ." 9 C.J., Burglary, 1076, Sec. 133.
"Burglary consists of two essential elements, the breaking and entering of the house, and, second, the felonious intent to commit some crime therein." State v. Buchanan, 75 Miss. 349.
If one is to be legally convicted of burglary, three things must concur. There must be a felonious and burglarious breaking, an absence of consent and an intent to commit a felony or steal, as declared in Sec. 2043, Code 1942. Strait v. State, 77 Miss. 693; 9 C.J., Burglary, Secs. 20, 21; 12 C.J.S. 734, Sec. 57; George v. State, 183 Miss. 327, 184 So. 67; Jones v. State, 26 S.W.2d 805; Davis v. Commonwealth, 110 S.E. 356, 132 Va. 512; State v. Starkweather, 89 Mont. 381, 297 P. 497; Lowder v. State, 63 Ala. 143, 35 Am. St. Rep. 9; Miller v. State, 136 Tex.Crim. R., 125 S.W.2d 596; Allen v. State, 8 Okla. Cr. 373, 231 P. 96.
It is respectfully submitted that there is another reason why this verdict and judgment cannot stand, and that is this: Note the jury found appellant guilty of burglary — "guilty as charged." "When an indictment charges burglary and larceny, a general verdict of `guilty as charged' is one guilty of burglary alone." Dees, et al. v. State, 89 Miss. 754; Roberts v. State, 55 Miss. 421, 423.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
This prosecution is under Sec. 2043, Code 1942. The essential elements to prove in a case of this kind are laid down in Gross v. State, 191 Miss. 383, 2 So.2d 818, in which it was held, "The essentials to prove the crime of burglary are a breaking and entering the building, and showing that it was done with intent to steal therein or to commit a felony," and
"By `breaking' is meant any act of force, regardless of how slight, necessary to be used in entering the building, — the turning of a knob, a slight push to further open a door, the raising of a latch, or like act, being sufficient."
The contention of appellant seems to be based almost entirely on the fact that appellant had the consent, impliedly, of the owner to go into the building.
The jury, of course, had a right to disregard the testimony attempting to prove the consent of Scoggins to the entry into the building for any purpose. The facts of the case show that the claim of consent to entry did not cover the crime here, and that, consequently, entry was unlawful, for an unlawful purpose. The theory of appellant as to the consent is utterly improbable and unreasonable.
The appellant, Leon Holderfield, was indicted for the crime of burglary and larceny, tried and found guilty as charged and sentenced to a term of three years in the penitentiary. From this judgment he appeals.
The evidence on the part of the state as testified to by J.L. Scoggins, the owner of the Ranch House, which was alleged to have been burglarized, showed that the sum of $46 was taken from a juke box and cigarette machine which had been forcibly opened. Entry to the Ranch House was made by raising a window. Scoggins testified that he had known the appellant for a number of years, and that he had worked for him occasionally up until two or three days before the building was entered. He also testified that he had given the appellant a key to the building but could not recall whether or not the appellant had the key at the time of the alleged burglary; that the appellant had the right to enter the building at any time day or night by raising the window "if he had the key". The appellant testified in his own behalf, stating that he had the key but left it at home the night he entered the building. Scoggins testified further that the appellant did not have his permission to enter the place and break open the music box and cigarette machine and take the money. His testimony was contradictory and equivocal. There was other testimony in the case, but we do not find it necessary to detail it here.
Among the assignments of error argued by the appellant is that the court erred in granting the following instruction to the State: "The court instructs the jury for the state that even though you believe that the defendant Leon Holderfield had permission to enter the building of J.L. Scoggins known as the Ranch House, if from the evidence in this case you believe beyond every reasonable doubt that he wilfully, unlawfully, feloniously, and burglariously, broke and entered the said building on September 10, 1951, by opening a closed window thereon, with the felonious intent to take, steal, and carry away the sum of $46 or any part thereof, the property of J.L. Scroggins, or property in the care, custody, and control of J.L. Scroggins, being then and there in said building, and which said sum of money or any part thereof of said Leon Holderfield did not have the permission to take and carry away, then it would be your sworn duty to find the defendant guilty as charged."
The court also granted the defendant the following instruction: "The court instructs the jury for the defendant that before you can convict the defendant of burglary, you must believe beyond a reasonable doubt that he entered the premises without the consent of the owner and with the felonious intent then and there, at the time of the entry, to commit a crime. And if you believe that he entered the building either with the owner's consent, or without a felonious intent to commit larceny you must under your oaths find him not guilty of burglary."
(Hn 1) Under the indictment for burglary and larceny the jury returned a verdict of guilty as charged. This is a conviction for burglary. Clanton v. State, 211 Miss. 568, 52 So. 349.
The appellant was indicted under Sec. 2043, Code of 1942. Under this section it is necessary that there be an unlawful breaking and entering to constitute the crime of burglary. (Hn 2) "The crime of burglary consists of two essential elements, viz: (1) The burglarious breaking and entering of the house, and (2) the felonious intent to commit some crime therein." Brumfield v. State, 206 Miss. 506, 40 So.2d 268. In the case of Yates v. State, 172 Miss. 581, 161 So. 147, with reference to the corpus delicti of burglary, the Court said: "It is also contended that the corpus delicti was not proven independently of the confession. The proof showed that the lock was broken, the door opened, and the seed taken away without the consent of the owner. That constituted the corpus delicti. . . . (Hn 3) It is not a part of the corpus delicti to show that the appellant did the breaking, but it was the criminal breaking without the consent of the owner, for the purpose of taking property stored in the building that constituted the corpus delicti. This was amply shown by the evidence." (Emphasis ours).
(Hn 4) We are of the opinion that the court erred in giving the above quoted instruction for the state, wherein it is stated "that even though you believe that the defendant, Leon Holderfield, had permission to enter the building", as there could be no burglary if the appellant had the consent of the owner of the building to enter as he did. 12 C.J.S., Burglary, Sec. 12, states: "Except in cases of constructive breaking where an entry is effected by fraud or intimidation, as has been shown in Sec. 9, supra, there can be no breaking, and therefore there is no burglary where the occupant of a house, or an agent or servant having authority, expressly or impliedly invites or consents to the entry. The fact that one who enters with the consent of the owner commits a larceny after the entry does not make him guilty of a burglary." See also 2 Wharton's Criminal Law, 12th ed., Sec. 1048.
(Hn 5) Furthermore, this instruction is in direct conflict with the instruction granted the defendant set out above which required the jury "before they could convict the defendant of burglary" to believe "beyond a reasonable doubt that he entered the premises without the consent of the owner." These instructions did not furnish the jury a correct guide and they are in irreconcilable conflict. Murphy v. State, 89 Miss. 827, 42 So. 877; Butler v. State, 177 Miss. 91, 170 So. 148.
We are of the opinion that the testimony of Scoggins, the owner of the building, unsatisfactory though it was, was a question for the determination of the jury under proper instructions as to whether or not he had given the appellant consent to enter the building as he did. Dees v. State, 89 Miss. 754, 42 So. 605. For the granting of the instruction on the part of the state quoted above, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Roberds, P.J., and Hall, Lee, and Holmes, JJ., concur.