When evidence of a separate and inde- | 43; Stone v. State, 63 Ala. 115; Trevenio v. pendent crime or offense has been improperly State, - Tex. Crim. Rep. - 42 S. W. 394; introduced, and it is apparent that its re- State v. Riggs, 74 Minn. 460, 77 N. W. 302, ception must have been to prejudice the 11 Am. Crim. Rep. 200. rights of the accused, a charge to the jury to disregard the evidence will not cure the error in admitting it. Boyd v. United States, 142 U. S. 450, 35 L. ed. 1077, 12 Sup. Ct. Rep. 292; People v. Molineux, 62 L.R.A. 355, note. There can be no breaking, and therefore no burglary, where the entry is with the consent of the owner, or his invitation or sanction, express or implied. 6 Cyc. 180, 181; Neiderluck v. State, 23, Tex. App. 38, 3 S. W. 573; Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9; State v. Newbegin, 25 Me. 500; State v. Moore, 12 N. H. an invitation. That he is not one of the public invited, nor is he entitled, to enter, and such a party could be refused admission at the threshold or ejected from the premises after the entry was accomplished. That if the presence of such party in the store is lawful, the fact that he gained ingress openly and publicly through the front door rather than clandestinely by way of the skylight or the cellar is not material, and the result would be that no burglary could be committed in a store during business hours regardless of the nature of the entry. The court distinguished State v. Newbegin, 25 Me. 502, and Clarke v. Com. 25 Gratt. 908, as being cases under a statute which requires that, in order to constitute burglary, there must not only be an entry, but also a breaking. The court also distinguished State v. Moore, 12 N. H. 42, stating that the primary question therein involved was as to sufficiency of the evidence to show a criminal intent in entering the building, and does not reach the matter of the character of the entry. In the Brittain Case, supra, the court said: "It would be an impeachment of the common sense of mankind to say that a thief who enters a store with intent to steal does so with the owner's consent or upon his invitation. It is true the thief must have clothes and food, and may enter a store to procure them. And if after he enters he changes his mind and concludes to steal, and not purchase his supplies, it would be larceny. But if it be proven that he entered with intent to steal, the law will not, in the face of such proof, shield him from punishment as a burglar on the assumption that he has the consent and invitation of the proprietor to so enter." So, also, in Pinson v. State, 91 Ark. 434, 121 S. W. 751, it was held that, under a statute providing that burglary is the unlawful entering a house in the nighttime with intent to commit a felony, one who, with a preconceived purpose of committing a theft therein, enters a saloon during the night while it is open for business, is guilty If there was any evidence on the question of the right of the defendant to be in that store at the time laid in the information, or of any other material matter in the case, it was of such a meager character that the judgment should be set aside. State v. Newton, 39 Wash. 491, 81 Pac. 1002; State v. Payne, 6 Wash. 563, 34 Pac. 317; State v. Pagano, 7 Wash. 549, 35 Pac. 387. Messrs. George H. Crandall, F. M. Goodwin, and D. B. Heil, for the State: If defendant's right to enter the building was limited, and he entered the building for of burglary, the court stating that it adopted the reasoning of People v. Barry, supra. And in Gonzales v. State, Tex. Crim. Rep., 50 S. W. 1018, it was held that one who, with intent to steal, lifts the latch and opens the door of a store and enters the same, is guilty of burglary, although at the time the store is open for business. In rendering its opinion the court said: “Appellant requested the court to instruct the jury as follows: 'You are further instructed, if you believe from the evidence that defendant entered said house in the same manner and by the usual way and the usual place that customers entered, and that said house, at the time said defendant entered same, was open to the public for purposes of trade, and that defendant entered said house in the same way and at the same place, without force applied to said house to effect said entrance, you will acquit defendant, and say by your verdict "not guilty."› The court had already charged the jury that before appellant could be convicted of burglary they must believe that he entered the house by force applied to the house. The evidence showed that the house in question was a storehouse, or a part of a storehouse, and that the front door through which appellant entered was fastened by the latch, but could be easily opened by turning the bolt, as the store had been unlocked for business, but the door had afterwards been closed and latched. Although the store had evidently been open for business, we do not understand a person can enter such store by opening the door that is latched, for the purpose of stealing, merely because customers are authorized to enter the store for the purpose of business. Of course, if a customer should enter the store by lifting a latch or removing a bolt in the usual way in which customers entered for the purpose of purchasing goods merely, and should thereafter commit theft, such a customer would not be guilty of burglary; but the requested charge was not of that character, but proceeded solely on the idea that, because the store was open for business, although the door was shut and latched, there could be no such thing St. Rep. 902, 109 Pac. 331, 111 Pac. 768. a purpose other than the one for which he | 191; State v. Thuna, 59 Wash. 689, 140 Am. had been given the right to enter, then he is guilty of an unlawful breaking and entering under the statute. Pointer v. State, 148 Ala. 676, 41 So. 929; Lowder v. State, 63 Ala. 143, 35 Am. Rep. 9; Young v. Com. 126 Ky. 474, 128 Am. St. Rep. 326, 104 S. W. 266, 15 Ann. Cas. 1022; United States v. Bowen, 4 Cranch, C. C. 604, Fed. Cas. No. 14,629; 6 Cyc. 180; 4 Bl. Com. 227. If the state has evidence that the defendant entered with the intention of committing a crime, it is clearly competent. The court can govern the quantum of evidence a party shall introduce only as it becomes cumulative. Higgins v. State, 157 Ind. 57, 60 N. E. 685; Jones, Ev. p. 166; Strong v. State, 86 Ind. 208, 44 Am. Rep. 292; People v. Seaman, 107 Mich. 348, 61 Am. St. Rep. 326, 65 N. W. 203. If evidence is relative to the issues in the case at bar, it cannot be excluded because it shows the commission of other crimes. State v. Leroy, 61 Wash. 405, 112 Pac. 635; State v. Dana, 59 Wash. 30, 109 Pac. as the burglary of a store in that condition. We do not understand this to be the law." Although there is no mention of the statute under which the charge was prosecuted, yet it is evident from the opinion that the element of force is necessary to constitute burglary, and so this case is apparently in conflict with Love v. State, infra. But an indictment for breaking and entering a store, under a statute providing for punishment of one who with intent to commit a felony breaks and enters any office, shop, or warehouse, is not sustained by evidence that during the evening, while the store was lighted and open for business, except that the door was closed, accused, with intent to steal, carefully lifted the latch on the door and entered the store and stole goods therefrom. The State v. Newbegin, supra. court stated: "The offense of breaking is a violation of the security designed to exclude, and, coupled with an entrance into a shop with a felonious intent, it constitutes the crime charged in the indictment. The opening of a shop door in the daytime which had been closed only to exclude the dust or cold air, with a design that it should be opened by all who should be inclined to enter, could not be a violation of any security designed to exclude, and therefore not a breaking. It would not even be a trespass, for the custom of trade in it would be evidence of a general license to enter. The effect would not be different, if the entrance were made in the evening under like circumstances, while the shop continued to be lighted and prepared for trade." Nor is there an entry by force to constitute the offense of burglary where one enters a public telephone booth and, break The exceptions to the general rule of the admission of evidence as to other crimes have been applied to cases of burglary as well as to other cases. State v. Leroy, 61 Wash. 405, 112 Pac. 635; 6 Cyc. 236; State v. Franke, 159 Mo. 535, 60 S. W. 1053; Com. v. Shepherd, 2 Pa. Dist. R. 345; State v. Valwell, 66 Vt. 558, 29 Atl. 1018; State v. Weldon, 39 S. C. 318, 24 L.R.A. 126, 17 S. E. 688; State v. Pittam, 32 Wash. 137, 72 Pac. 1042. Mount, J., delivered the opinion of the court: The defendant was convicted upon a charge of burglary in the second degree. He appeals from a judgment pronounced upon the verdict of a jury. His counsel assigns several errors, which are argued under two heads, to the effect that the court erred in permitting certain evidence offered on behalf of the state, and in denying a motion to dismiss at the close of the state's evidence, in refusing to direct a verdict at the close of ing open the drawer, takes money therefrom. Miscellaneous cases. In Clarke v. Com. 25 Gratt. 908, it was held that there could be no constructive breaking by conspiracy where one of the conspirators is a joint occupier of the room entered, the court distinguishing cases where one of the conspirators is a servant; and all the evidence, and in denying the appel- three hours before opening time in the mornlant's motion for new trial. It appears that the appellant was employed by the Pierce Harness Company from about May, 1912, to July, 1913, as a cutter in the harness shop conducted by that company, in Spokane. At the time the appellant was employed by Mr. Muffett, manager of the harness company, a key was given to the appellant which permitted him to enter the store and harness shop. At the time the key was given to him, it was stated that he was to open up at about 7 o'clock in the morning. Thereafter, in January, 1913, an invoice of the stock on hand was made by the harness company. At that time the stock of goods in the basement of the building, and the stock about the work bench of the appellant, were inventoried by the appellant. Some time thereafter Mr. Muffett discovered that articles of finished harness were hidden away around the work bench of the appellant. These hidden articles were marked and left there by Mr. Muffett. They afterwards disappeared, or their hiding places were changed. Thereafter Mr. Muffett employed men to watch the store for two or so the offense of burglary was not committed where, in pursuance of a conspiracy entered into with a third person, one occupant of a room entered the same by means of his own key and stole therefrom property belonging to the co-occupant. Nor is it burglarious breaking and entry if a guest at an inn who has a legal right to enter any public room of the house enters the barroom and steals therefrom. I State v. Moore, 12 N. H. 42. The court stated that, having a legal right to enter the house, the subsequent larceny could not relate back and give a character to the entry into the house so as to make it criminal, and the prisoner punishable for it, upon reasoning similar to that which in a civil action would render him liable as a trespasser ab initio. And where one who rented stalls in a stable, in which he kept his horses, and also a sleeping room inside the stable and in the rear of the stable office, in which he slept, lifted the door of a bin in the same building, adjoining his room, and belonging to other parties, and took therefrom oats which he fed to his horses, such entering did not constitute burglary, under a statute requiring actual breaking where entry of the building for purpose of theft is by an "inhabitant" thereof, he being an inhabitant of the livery stable, and so the lifting of the door of a bin did not constitute an actual breaking. Peters v. State, 33 Tex. Crim. Rep. 170, 26 S. W. 61. In Young v. Com. 126 Ky. 474, 128 Am. St. Rep. 326, 104 S. W. 266, 15 Ann. Cas. 1022, where a farm laborer who occupied the house with the owner's family obtained leave of absence for several days under a ing, and for three or four hours after closing time in the evening. Evidence was offered on the part of the state to the effect that the inventory made by the appellant was padded. That is, that a greater amount of goods were reported on hand than were actually there. Evidence on the part of the state was also admitted, to the effect that the appellant was seen upon different occasions to enter the store at 5 o'clock in the morning, remain there for a time, then leave and return to the store at the regular opening time; that he did the same thing upon certain evenings after closing time, and that upon one occasion, on the night of May 9, 1913, the appellant was seen to go into the store, stay in there for about an hour, take some chamois skins in his pocket, and go out. Upon another occasion, on May 24, 1913, at about 5 o'clock in the morning, he went into the store by the use of his key, remained there for a while, took a gunny sack filled with something into the alley, had a conversation in the alley with some person unknown, and returned to the store with the gunny sack. Thereafter, and about July 1st, pretense of visiting another point, and, the owners having locked up their house and left for the day, such laborer went to the wife of one of the owners and got from her the keys to the house, ostensibly to take away some of his clothing, and thus gaining admission to the house stole and carried therefrom property of another, it was held that he was guilty of housebreaking, under a statute which provides: "If any person shall feloniously break any dwelling house or any part thereof or any outhouse belonging to or used with any dwelling house, and feloniously take away anything of value, although the owner or any person may not be there, he shall, etc." The court said: "Conceding that appellant had the right to enter the house in question to take away his own clothes, and had he entered under such circumstances, and then formed and executed the intention to steal the landlord's clothes, he would not have been guilty under the statute, our case comes down to a narrower state of facts; for, appellant having gone away under arrangement with his landlord, his relation as cotenant of the house had ceased for the time being. Though he had the right notwithstanding to remove his clothes from the house, he had not the right to enter the house for that purpose except by the consent of the landlord. When, therefore, he simulated that he desired the key for that purpose, but in reality for the purpose of stealing from the house, he resorted to a trick that was a fraud upon the landlord, and one that gave him no right of entry, and therefore no protection." J. H. B. Mr. Muffett confronted the appellant, and | commission of another and different crime accused him of taking goods from the store. would not exclude it." Mr. Muffett testifies that the appellant admitted having done so. The appellant, however, denied that he took goods from the store upon these occasions, or at any other time. And in State v. Leroy, 61 Wash. 405, 112 Pac. 635, we said: "Testimony otherwise relevant does not become incompetent because it may tend incidentally to show that the accused has committed another crime.' It is argued by the appellant that it was It is true the statute provides at Rem. & error for the court to permit evidence re- Bal. Code, § 2580 (P. C. 135, § 653), that lating to the padding of the invoice, or to every person who shall unlawfully break and the taking of the chamois skins on May 9, enter any building where property is kept 1913, or of finding the secreted articles in for use, sale, or deposit shall be deemed to and about the work bench of the appellant. have broken and entered with intent to comIt is contended that this was error because mit a crime therein, but this does not preit permitted the state to prove an independ- vent the state from showing the intent of ent crime, and thereby prejudice the jury the person breaking and entering. The efagainst the appellant. There can be no fect of the evidence which was introduced doubt that, as a general rule, evidence of was to show a cou.se of conduct on the part other distinct criminal acts cannot be intro- of the appellant. The padding of the induced to prove a defendant guilty of an in-ventory, the concealment of goods which dependent crime charged against him. This were afterwards taken away, the fact that court has frequently so held. But there are exceptions to this rule. The exceptions are well stated in the case of Collier v. State, Miss. 64 So. 373, where it was said: "Upon the trial of an indictment, a previous crime committed by defendant can be proved only: (a) Where it is connected with the one charged in the indictment, and sheds light upon the motive of defendant; or (b) where it forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts; or (c) in cases of conspiracy, uttering forged instruments or counterfeit coin, and receiving stolen goods, for the sole purpose of showing a criminal intention." the appellant entered the store when no one else was present, and out of hours, and took articles from the store, tended to show the intent of the appellant upon entering the store at unusual hours, and upon the occasion charged. We are clearly of the opinion that for the purpose of showing intent, the course of conduct of the appellant was properly in evidence in this case, and falls within the exception to the rule rather than within the rule. It is next strenuously argued by the appellant that the court should have granted the motion for a directed verdict at the close of the state's evidence, and at the close of all of the evidence. This argument is This court has held to the same effect. In based upon the fact that the appellant was State v. Pittam, 32 Wash. 137, 72 Pac. 1042, furnished with a key to the premises, and it was said: "It is a well-established rule therefore had a right to enter the building that it is not competent to show the com- whenever he saw fit, and that there could mission by the defendant of other distinct be no breaking, and therefore no burglary, crimes for the purpose of proving that he is when the entry was with the consent of the guilty of the crime charged; but, for the owner of the building, or upon his invitapurpose of construing the actions or of as- tion, express or implied. There can be no certaining the intent of the defendant in the doubt that if the furnishing of the key to commission of the acts proven, other inde- the building by the prosecuting witness aupendent culpable acts are sometimes admis-thorized the appellant to enter the store at sible in evidence. We think it was competent to show that in the general scheme he adopted in keeping his accounts with his employer, the result was the appropriation by him of the funds of the employer, not for the purpose of prejudicing a jury against him by proving the commission of independent crimes, but to throw light on his intentions in the perpetration of the particular transaction constituting the crime charged." any time of the day or night, then there could be no unlawful breaking or entering. The evidence upon this point was sufficient to take the case to the jury. The prosecuting witness testified that he furnished a key to the appellant, but told him at the time that he was to open the store in the morning. It was stated that the opening time in the morning was about 7 o'clock. The closing time was in the evening about 6 o'clock. The authority of appellant to And in State v. Dana, 59 Wash. 30, 109 enter the store, according to this evidence, Pac. 191, we said: "Of course, if the offered was the usual hours of work. There was testimony was relevant to the issues in this some testimony offered on behalf of the apcase, the fact that it tended to show thepellant to the effect that the prosecuting The judgment is therefore affirmed. witness knew that the defendant had entered that the evidence offered was admissible in the store on different occasions after the this case, and that there was sufficient to time, and no objections were made thereto, take the case to the jury, and that the court but these were special occasions when ap- did not err in denying the motions made by pellant worked overtime, so that the ques- the appellant. tion of whether or not appellant's authority to enter the store before the regular hours for opening, or after the hours for closing, was a question for the jury to determine under the evidence in the case. The court very properly instructed the jury upon this point, as follows: "If one having the right to do so goes into a building, that would not be breaking and entering, no matter what his object was in going into the building. One's right to enter a building may be general or limited. If general, then, he may go into the building at any time or for any purpose and the entry Crow, Ch. J., and Fullerton, Parker, and Morris, JJ., concur. Petition for rehearing denied. ARKANSAS SUPREME COURT. CHARLES F. BAIN, Appt., V. would not be wrongful; but if the right is FORT SMITH LIGHT & TRACTION COM limited, then an entry would be wrongful unless made for a purpose for which he had been given the right. It will be your duty to determine from the evidence in this case whether the right which the defendant had in going into the building was general or limited. If you find that the defendant's right to enter was general, that is, not restricted to purposes of his employment, then he could not be found guilty of burglary, nɔ matter what his object may have been in going into the building. In order to prove the defendant guilty as charged in the information, it will be necessary for the state to show that the entry was wrongful by the evidence, and beyond a reasonable doubt, and to show that it was wrongful the state nust show that the defendant's right to enter the building was not a general and unrestricted right, but one that was limited; and they must further show that the defendant entered the store on May 24th, for some purpose other than that for which he had a right to enter." The instructions were not excepted to, and are apparently conceded by the appellant to have been proper. This was the principal question in the case. If the appellant had the right to enter the store by the use of his key at any time in the day or night, that is, had an unrestricted and unlimited right of entrance, he could not be guilty of the crime of burglary, even though he carried away the goods from the store. In such event the crime would be larceny, and not burglary. But if his right to enter was limited to the usual hours of employment, and after hours of employment he used the key for the purpose of entering the store with intent to unlawfully take articles therefrom, he was clearly guilty of burglary. 6 Cyc. 180, and cases there cited. We are satisfied from the whole record PANY. violation of municipal ordinance- negligence. 3. In an action by a mail carrier to hold a street car company liable for injury due to collision with its car, the fact that at the Note. Violation of statute or ordinance giving one vehicle right of way over another as affecting liability for injury. As to the validity of a statute or ordinance giving superior rights in public streets to certain vehicles, see Louisville R. Co. v. Louisville Fire & Life Protective Asso. and note thereto in 43 L.R.A. (N.S.) 600. As to violation of statute or ordinance in relation to blocking railroad crossing as affecting liability for injury, see note to Denton v. Missouri, K. & T. R. Co. 47 L.R.A. (N.S.) 820. Upon the general question as to violation of police ordinance as ground of private action, see note to Sluder v. St. Louis Transit Co. 5 L.R.A. (N.S.) 186; and as to private |