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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 If there was any evidence on the question to disregard the evidence will not cure the of the right of the defendant to be in that error in admitting it.

store at the time laid in the information, or Boyd v. United States, 142 U. S. 450, 35 of any other material matter in the case, it L. ed. 1077, 12 Sup. Ct. Rep. 292; People v. was of such a meager character that the Molineux, 62 L.R.A. 355, note.

judgment should be set aside. There can be no breaking, and therefore State v. Newton, 39 Wash. 491, 81 Pac. no burglary, where the entry is with the 1002; State v. Payne, 6 Wash. 563, 34 Pac. consent of the owner, or his invitation or 317; State v. Pagano, 7 Wash. 549, 35 sanction, express or implied.

Pac. 387. 6 Cyc. 180, 181; Neiderluck v. State, 23, Messrs. George H. Crandall, F. M. Tex. App. 38, 3 S. W. 573; Lowder v. State, Goodwin, and D. B. Heil, for the State: 63 Ala. 143, 35 Am. Rep. 9; State v. New- If defendant's right to enter the building begin, 25 Me. 500; State v. Moore, 12 N. H. was limited, and he entered the building for an invitation. That he is not one of the of burglary, the court stating that it adoptpublic invited, nor is he entitled, to enter, ed the reasoning of People v. Barry, supra. and such a party could be refused admission And in Gonzales v. State, Tex. Crim. at the threshold or ejected from the prem- Rep. —, 50 S. W. 1018, it was held that one ises after the entry was accomplished. “That who, with intent to steal, lifts the latch if the presence of such party in the store is and opens the door of a store and enters lawful, the fact that he gained ingress open the same, is guilty of burglary, although ly and publicly through the front door at the time the store is open for business. rather than clandestinely by way of the In rendering its opinion the court said: skylight or the cellar is not material, and “Appellant requested the court to instruct the result would be that no burglary could the jury as follows: 'You are further inbe committed in a store during business structed, if you believe from the evidence hours regardless of the nature of the en that defendant entered said house in the try.

same manner and by the usual way and the The court distinguished State v. Newbe- usual place that customers entered, and gin, 25 Me. 502, and Clarke v. Com. 25 that said house, at the time said defendant Gratt. 908, as being cases under a statute entered same, was open to the public for which requires that, in order to constitute purposes of trade, and that defendant burglary, there must not only be an entry, entered said house in the same way and at but also a breaking.

the same place, without force applied to The court also distinguished State v. said house to effect said entrance, you will Moore, 12 N. H. 42, stating that the pri- acquit defendant, and say by your verdict mary question therein involved was as to "not guilty.”' The court had already sufficiency of the evidence to show a crim. charged the jury that before appellant inal intent in entering the building, and could be convicted of burglary they must bedoes not reach the matter of the character lieve that he entered the house by force of the entry.

applied to the house. The evidence showed In the Brittain Case, supra, the court that the house in question was a storehouse, said: “It would be an impeachment of the or a part of a storehouse, and that the front common sense of mankind to say that a door through which appellant entered was thief who enters a store with intent to fastened by the latch, but could be easily steal does so with the owner's consent or opened by turning the bolt, as the store upon his invitation. It is true the thief had been unlocked for business, but the must · have clothes and food, and may en door had afterwards been closed and latched. ter a store to procure them. And if after Although the store had evidently been open he enters he changes his mind and con- for business, we do not understand a person cludes to steal, and not purchase his sup can enter such store by opening the door plies, it would be larceny. But if it be that is latched, for the purpose of stealing, proven that he entered with intent to steal, merely because customers are authorized to the law will not, in the face of such proof, enter the store for the purpose of business. shield him from punishment as a burglar Of course, if a customer should enter the on the assumption that he has the consent store by lifting a latch or removing a bolt and invitation of the proprietor to so enter.” in the usual way in which customers en

So, also, in Pinson v. State, 91 Ark. 434, tered for the purpose of purchasing goods 121 S. W. 751, it was held that, under a merely, and should thereafter commit theft, statute providing that burglary is the un such a customer would not be guilty of lawful entering a house in the nighttime burglary; but the requested charge was with intent to commit a felony, one who, not of that character, but proceeded solely with a preconceived purpose of committing on the idea that, because the store was open a theft therein, enters a saloon during the for business, although the door was shut night while it is open for business, is guilty and latched, there could be no such thing

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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 St. Rep. 902, 109 Pac. 331, 111 Pac. 768. guilty of an unlawful breaking and enter- The exceptions to the general rule of the ing under the statute.

admission of evidence as to other crimes Pointer v. State, 148 Ala. 676, 41 So. 929; have been applied to cases of burglary as Lowder v. State, 63 Ala. 143, 35 Am. Rep. well as to other cases. 9; Young v. Com. 126 Ky. 474, 128 Am. St.

State v. Leroy, 61 Wash. 405, 112 Pac. Rep. 326, 104 S. W. 266, 15 Ann. Cas. 1022; 635; 6 Cyc. 236; State v. Franke, 159 Mo. United States v. Bowen, 4 Cranch, C. C. 604, 535, 60 S. W. 1053; Com. v. Shepherd, 2 Pa. Fed. Cas. No. 14,629 ; 6 Cyc. 180; 4 Bl. Com. Dist. R. 345; State v. Valwell, 66 Vt. 558, 227. If the state has evidence that the defend- | 24 L.R.A. 126, 17 S. E. 688; State v. Pit

29 Atl. 1018; State v. Weldon, 39 S. C. 318, ant entered with the intention of committing a crime, it is clearly competent. The court tam, 32 Wash. 137, 72 Pac. 1042. can govern the quantum of evidence a party shall introduce only as it becomes cumula

Mount, J., delivered the opinion of the tive.

court: Higgins v. State, 157 Ind. 57, 60 N. E.

The defendant was convicted upon 685; Jones, Ev. p. 166; Strong y. State, 86 charge of burglary in the second degree. He Ind. 208, 44 Am. Rep. 292; People v. Sea- appeals from a judgment pronounced upon man, 107 Mich. 348, 61 Am. St. Rep. 326, 65 the verdict of a jury. His counsel assigns N. W. 203.

several errors, which are argued under two If evidence is relative to the issues in the heads, to the effect that the court erred in case at bar, it cannot be excluded because it permitting certain evidence offered on behalf shows the commission of other crimes. of the state, and in denying a motion to dis

State v. Leroy, 61 Wash. 405, 112 Pac. miss at the close of the state's evidence, in 635; State v. Dana, 59 Wash. 30, 109 Pac. 'refusing to direct a verdict at the close of as the burglary of a store in that condition. ing open the drawer, takes money therefrom. We do not understand this to be the law." Love v. State, 52 Tex. Crim. Rep. 84, 105 Although there is no mention of the statute S. W. 791. The court stated that "this under which the charge was prosecuted, yet booth was open to the public indiscrimiit is evident from the opinion that the ele nately, and was so arranged that parties ment of force is necessary to constitute burg. who desired to talk over the phone from lary, and so this case is apparently in con- this booth could place their money in the flict with Love v. State, infra.

drawer and talk from that booth instead of But an indictment for breaking and en going to the central office. The booth seems tering a store, under a statute providing I to have been in one corner of the passenger for punishment of one who with intent to waiting room, and was placed there for the commit a felony breaks and enters any office, accommodation of the public, and any. shop, or warehouse, is not sustained by evi- body and everybody could enter it at dence that during the evening, while the store his will and pleasure, and was placed was lighted and open for business, except that there for that specific purpose. This would the door was closed, accused, with intent to prove the consent of the party in control steal, carefully lifted the latch on the door of the booth for any and every body who and entered the store and stole goods there- desired to use it to enter it. If it be confrom. State v. Newbegin, supra. The ceded that the booth was a house within the court stated : “The offense of breaking is contemplation of the statute, appellant or a violation of the security designed to ex. any other party desiring to use it had the clude, and, coupled with an entrance into authority and consent and was invited to a shop with a felonious intent, it consti- enter and use it by paying the customary tutes the crime charged in the indictment. charges. If he so entered the booth and The opening of a shop door in the daytime took the money from the drawer into which which had been closed only to exclude the it was dropped by those who used the booth, dust or cold air, with a design that it should the mere breaking of the money drawer be opened by all who should be inclined to would not constitute burglary. If he did so, enter, could not be a violation of any se- it would be theft, provided he took money curity designed to exclude, and therefore from the drawer." 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.

Miscellaneous cases. The effect would not be different, if the entrance were made in the evening under like In Clarke v. Com. 25 Gratt. 908, it was circumstances, while the shop continued to held that there could be no constructive be lighted and prepared for trade.” breaking by conspiracy where one of the

Nor is there an entry by force to consti- conspirators is a joint occupier of the room tute the offense of burglary where one en- entered, the court distinguishing cases where ters a public telephone booth and, break-'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.

ing, and for three or four hours after closing It appears that the appellant was em- time in the evening. Evidence was offered ployed by the Pierce Harness Company from on the part of the state to the effect that the about May, 1912, to July, 1913, as a cutter inventory made by the appellant was padded. in the harness shop conducted by that com. That is, that a greater amount of goods pany, in Spokane. At the time the appel- were reported on hand than were actually lant was employed by Mr. Muffett, manager there. Evidence on the part of the state was of the harness company, a key was given to also admitted, to the effect that the appelthe appellant which permitted him to enter lant was seen upon different occasions to the store and harness shop. At the time the enter the store at 5 o'clock in the morning, key was given to him, it was stated that he remain there for a time, then leave and rewas to open up at about 7 o'clock in the turn to the store at the regular opening morning. Thereafter, in January, 1913, an time; that he did the same thing upon cerinvoice of the stock on hand was made by tain evenings after closing time, and that the harness company:

At that time the upon one occasion, on the night of May 9, stock of goods in the basement of the build- 1913, the appellant was seen to go into the ing, and the stock about the work bench of store, stay in there for about an hour, take the appellant, were inventoried by the ap- some chamois skins in his pocket, and go pellant. Some time thereafter Mr. Muffett out. Upon another occasion, on May 24, discovered that articles of finished harness 1913, at about 5 o'clock in the morning, he were hidden away around the work bench of went into the store by the use of his key, rethe appellant. These hidden articles were mained there for a while, took a gunny sack marked and left there by Mr. Muffett. They filled with something into the alley, had a afterwards disappeared, or their hiding conversation in the alley with some person places were changed. Thereafter Mr. Muffett unknown, and returned to the store with the employed men to watch the store for two or gunny sack. Thereafter, and about July 1st, so the offense of burglary was not commit., pretense of visiting another point, and, the ted where, in pursuance of a conspiracy en- owners having locked up their house and tered into with a third person, one occu- left for the day, such laborer went to the pant of a room entered the same by means wife of one of the owners and got from her of his own key and stole therefrom proper- the keys to the house, ostensibly to take ty belonging to the co-occupant.

away some of his clothing, and thus gainNor is it burglarious breaking and entry ing admission to the house stole and carif a guest at an inn who has a legal right ried therefrom property of another, it was to enter any public room of the house en held that he was guilty of housebreaking, ters the barroom and steals therefrom. under a statute which provides: “If any State v. Moore, 12 N. H. 42. The court stat- | person

shall feloniously break ed that, having a legal right to enter the any dwelling house or any part thereof or house, the subsequent larceny could not re- any outhouse belonging to or used with late back and give a character to the en- any dwelling house, and feloniously take try into the house so as to make it criminal, away anything of value, although the ownand the prisoner punishable for it, upon er or any person may not be there, he shall, reasoning similar to that which in a civil etc." action would render him liable as a tres- The court said: “Conceding that appelpasser ab initio.

lant had the right to enter the house in And where one who rented stalls in a question to take away his own clothes, and stable, in which he kept his horses, and had he entered under such circumstances, also a sleeping room inside the stable and and then formed and executed the intention in the rear of the stable office, in which he to steal the landlord's clothes, he would not slept, lifted the door of a bin in the same have been guilty under the statute, our case building, adjoining his room, and belonging comes down to a narrower state of facts; to other parties, and took therefrom oats for, appellant having gone away under arwhich he fed to his horses, such entering | rangement with his landlord, his relation did not constitute burglary, under a stat- as cotenant of the house had ceased for the ute requiring actual breaking where entry time being. Though he had the right notof the building for purpose of theft is by withstanding to remove his clothes from an "inhabitant" thereof, he being an in the house, he had not the right to enter the habitant of the livery stable, and so the house for that purpose except by the conlifting of the door of a bin did not constitute sent of the landlord. When, therefore, he an actual breaking. Peters v. State, 33 simulated that he desired the key for that Tex. Crim. Rep. 170, 26 S. W. 61.

purpose, but in reality for the purpose of In Young v. Com. 126 Ky. 474, 128 Am. stealing from the house, he resorted to a St. Rep. 326, 104 S. W. 266, 15 Ann. Cas. trick that was a fraud upon the landlord, 1022, where a farm laborer who occupied and one that gave him no right of entry, the house with the owner's family obtained and therefore no protection." J. H. B. leave of absence for several days under a

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 ad- And in State v. Leroy, 61 Wash. 405, 112 mitted having done so. The appellant, how. Pac. 635, we said: "Testimony otherwise ever, denied that he took goods from the relevant does not become incompetent bestore upon these occasions, or at any other cause it may tend incidentally to show that time.

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 inventory, 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 ; the appellant entered the store when no one exceptions to this rule. The exceptions are else was present, and out of hours, and took well stated in the case of Collier v. State, articles from the store, tended to show the Miss. —, 64 So. 373, where it was said: intent of the appellant upon entering the “Upon the trial of an indictment, a previous store at unusual hours, and upon the occacrime committed by defendant can be proved sion charged. We are clearly of the opinion only: (a) Where it is connected with the that for the purpose of showing intent, the one charged in the indictment, and sheds course of conduct of the appellant was proplight upon the motive of defendant; or (b) erly in evidence in this case, and falls within where it forms a part of a chain of facts so the exception to the rule rather than withintimately connected that the whole must be in the rule. heard in order to interpret its several parts; It is next strenuously argued by the apor (c) in cases of conspiracy, uttering pellant that the court should have granted forged instruments or counterfeit coin, and the motion for a directed verdict at the close receiving stolen goods, for the sole purpose of the state's evidence, and at the close of showing a criminal intention.”

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 any time of the day or night, then there competent to show that in the general could be no unlawful breaking or entering. scheme he adopted in keeping his accounts The evidence upon this point was sufficient with his employer, the result was the ap- to take the case to the jury. The prosepropriation by him of the funds of the em- cuting witness testified that he furnished a ployer, not for the purpose of prejudicing a key to the appellant, but told him at the jury against him by proving the commission time that he was to open the store in the of independent crimes, but to throw light on morning. It was stated that the opening his intentions in the perpetration of the par. time in the morning was about 7 o'clock. ticular transaction constituting the crime The closing time was in the evening about charged."

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 the pellant to the effect that the prosecuting

.

V.

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 The judgment is therefore affirmed. to enter the store before the regular hours for opening, or after the hours for closing, Crow, Ch. J., and Fullerton, Parker, was a question for the jury to determine and Morris, JJ., concur. under the evidence in the case. The court very properly instructed the jury upon this Petition for rehearing denied. 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

ARKANSAS SUPREME COURT. 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

CHARLES F. BAIN, Appt., any time or for any purpose and the entry would not be wrongful; but if the right is FORT SMITH LIGHT & TRACTION COMlimited, then an entry would be wrongful

PANY. unless made for a purpose for which he had been given the right. It will be your duty

(- Ark.

172 S. W. 843.) to determine from the evidence in this case whether the right which the defendant had Municipal corporation

power to crein going into the building was general or ate right of action in favor of individlimited. If you find that the defendant's nal. right to enter was general, that is, not re

1. A municipality which has not reserved, stricted to purposes of his employment, then in granting a street railway franchise, the he could not be found guilty of burglary, no

right to create liability to individuals for matter what his object may have been in enacting an ordinance giving mail carriers

injuries arising from its acts, cannot, by going into the building. In order to prove a right of way in the street superior to the defendant guilty as charged in the in- street cars, create a right of action in favor formation, it will be necessary for the state of a mail carrier for injuries due to a breach to show that the entry was wrongful by the of the ordinance by the railway company. evidence, and beyond a reasonable doubt, and Same ordinance enforcement. to show that it was wrongful the state must

2. A municipal ordinance giving wagons show that the defendant's right to enter the carrying the United States mail the right of building was not a general and unrestricted way in the street superior to street cars is right, but one that was limited; and they tion, and not by private action by a mail

to be enforced merely by fine for its violamust further show that the defendant en-carrier injured by its nonobservance. tered the store on May 24th, for some pur- Evidence · violation of municipal ordi. pose other than that for which he had a

negligence. right to enter."

3. In an action by a mail carrier to hold The instructions were not excepted to, and a street car company liable for injury due to are apparently conceded by the appellant to collision with its car, the fact that at the have been proper.

This was the principal Note. Violation of statute or ordi. question in the case. If the appellant had nance giving one vehicle right of way the right to enter the store by the use of his over another as affecting liability for key at any time in the day or night, that is, injury. had an unrestricted and unlimited right of entrance, he could not be guilty of the crime

As to the validity of a statute or ordiof burglary, even though he carried away to certain vehicles, see Louisville R. Co. v;

nance giving superior rights in public streets the gocds from the store. In such event the Louisville Fire & Life Protective Asso. and crime would be larceny, and not burglary. note thereto in 43 L.R.A. (N.S.) 600. But if his right to enter was limited to the As to violation of statute or ordinance usual hours of employment, and after hours in relation to blocking railroad crossing of employment he used the key for the pur. as affecting liability for injury, see note to pose of entering the store with intent to Denton v. Missouri, K. & T. R. Co. 47 L.R.A.

(N.S.) 820. unlawfully take articles therefrom, he was

Upon the general question as to violation clearly guilty of burglary. 6 Cyc. 180, and of police ordinance as ground of private cases there cited.

action, see note to Sluder v. St. Louis TransWe are satisfied from the whole record it Co. 5 L.R.A. (N.S.) 186; and as to private

nance

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