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by those regulating railroad operation and | fidavit, the truth of which has been admitothers of a similar nature, but this severity ted, to prevent a continuance, is not error of punishment for a violation of such stat- where it is directed at the credibility of utes cannot be regarded as controlling to a state's witness who has not been intro

duced. take this class of cases out of the rules

Same - guilt of someone other than ac. which impose the duties of ordinary care

cused. established by the common law of negli

2. Upon trial for burglary evidence is ingence.

From this it results that in all admissible that witness learned that somecases where it is shown that a person oper-one other than accused had placed the stolen ating a motor vehicle in excess of the speed property near the house of accused to cast fixed by law,

another traveler suspicion on him. personal injuries, the question presented is | Burglary breaking out. whether, under all the facts and circum- 3. Burglary may be established by proof stances shown, his conduct amounts to of breaking out as well as breaking in, under gross negligence, and thus precludes him statutes providing punishment for anyone from asserting the defense of contributory house and take away anything of value,

who shall feloniously break any dwelling negligence; and if such operator is found and requiring statutes in derogation of the guilty only of a want of ordinary care,

common law to be liberally construed with a which proximately caused the collision and view to promote their objects. consequent injury, then he is entitled to as

Witness wife of one of two accused sert the defense of contributory negligence. persons.

An examination of the record of the case 4. The wife of one of two persons inshows that there is a conflict in the evi- dicted for burglary should be permitted to dence upon the question of the speed at testify in behalf the other, with a cauwhich defendant was operating the car, tion that the evidence is not to be conwhich should be resolved by the jury. We sidered as affecting the case of her husband. are of the opinion that the court properly

(October 8, 1914.) awarded a new trial, though the jury found tory negligence . It is apparent that the A Pope the circuit a touto for 'Whitley

by defendants from a judgment jury were probably misled by the court's County convicting them of housebreakaction in withdrawing from their considera

ing. Affirmed as to defendant Lawson. tion the question of defendant's violation Reversed as to the other defendant. of the statutory speed limit. This action The facts are stated in the opinion. of the court would naturally lead the jury Messrs. Rose & Pope for appellants. to believe that this element of the case had

Messrs. James Garnett, Attorney Generno bearing on the issue presented for their al, and R. T. Caldwell, for the Commonconsideration, and thus deprive plaintiff of wealth: the benefit of such evidence in determining The continuance should not have been whether or not the boy was guilty of a granted. want of ordinary care proximately contrib

Jones v. Com. 154 Ky. 640, 157 S. W. uting to produce the injuries.

1079; Toliver v. Com. 104 Ky. 760, 47 S. The order appealed from is affirmed.

W. 1082.

A wife should be permitted to testify Timlin, J., took no part.

under an admonition to the jury that her testimony is to be considered only on be

half of the other defendants than her husKENTUCKY COURT OF APPEALS.

band.

Dovey v. Lam, 117 Ky. 19, 77 S. W. 383, CRIT LAWSON et al., Appts.,

4 Ann. Cas. 16.

Nunn, J., delivered the opinion of the COMMONWEALTH OF KENTUCKY.

court:

The appellants, Crit Lawson and Greene (160 Ky. 180, 169 S. W. 587.)

Lawson, were indicted and convicted for Evidence exclusion of affidavits

de- housebreaking, and sentenced to the peninial of continuance.

tentiary one to five

years. The indict1. Refusal to admit in evidence an af- ' ment was returned on the 18th day of FebNote, Breaking out as the equivalent to whether breaking out was burglary at

of breaking in for purposes of bur- common law, Lord Bacon holding that it glary or housebreaking.

was (4 Bl. Com. 227, citing Bacon, Elm.

65), and Sir Matthew Hale that it was not. There appears to have been a conflict of (1 Hale, P. C. 554). Sir Matthew Hale opinion amongst the early English judges as said: "If a man enters in the nighttime

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ruary, and charges that on the 16th day | just after the defendants were arrested, he of February Crit and Greene Lawson “did heard Nathan Sullivan talking, and in that unlawfully, wilfully, feloniously, and for- way "learned that through the instrumencibly break open and into the dwelling tality of said Nathan Sullivan and others, house owned by Joe Perkins, and in the and by either them directly or through possession of A. Sawyer, and used as them by their connivance, the flour, lard, dwelling house, and did take, steal, and and other property said to have been obcarry away flour and lard of value there- tained by breaking into the outhouse confrom," etc.

trolled by Antony Sawyer was carried from The case was set for trial February 21st. said outhouse to near the home of Crit Appellants' sought a continuance ac- Lawson, at least some of same, and placed count of absent witnesses, and in support there for the purpose of afterward instiof it filed their affidavit showing that Jim tuting this prosecution against said Crit Carr and Alonzo Satterfield, if present, Lawson.

I do not know exactly, would swear that bad feelings existed be- from said conversation and said statement tween the defendants and Nathan Sullivan, of said Nathan Sullivan at said time, alleged chief witness for the

whether it was done through his or others' wealth, and Carr would also swear that, procurement." by doors opened with the intent to steal, whether one could be convicted of burglary and is pursued whereby he opens another even when charged with breaking out of a door to make his escape, this I think is house. The better opinion seemed to be that not burglary, for fregit et exivit is not the breaking must be for the purpose of effregit et intravit," and stated that this fecting an entrance, and not for the purpose opinion was contrary to the opinion of Lord of effecting an escape. And therefore the Bacon. Because of this conflict of opinion, statute of 12 Anne was passed, which made the statute of 12 Anne, chap. 7, § 3, was it burglary to break out of a house the same passed, providing: “Whereas there has as to break into it." And in Edwards v. been some doubt whether the entering into State, 36 Tex. Crim. Rep. 387, 37 S. W. 438, the mansion house of another, without the court said that not until the statute of breaking the same, with an intent to com 12 Anne was it burglary to break out of a mit some felony, and breaking the said house. house in the nighttime to get out, be In State v. Ward, supra, one who entered burglary, be it declared and enacted, that a dwelling house for the purpose of comif any person shall enter into the mansion mitting a felony, without breaking in, but or dwelling house of another, by day or by who in making his escape broke out, was night, without breaking the same, with an held guilty of burglary. The court said intent to commit felony; or being in such that "if each and every of the acts constihouse shall commit any felony, and shall in tuting a crime are committed, and all the the nighttime break the said house to get evils consequent on the crime are produced, out of the same, such person is and shall be the precise order in which the acts are done adjudged to be guilty of burglary,” and this cannot be material. Now, burglary is the statute was in effect, re-enacted in 7 and 8 breaking and entering the house of another Geo. IV. chap. 29, § 11, and 24 and 25 Vict. in the night season with an intent to comchap. 96, 8 51.

mit a felony. The jury have found that, Since the enactment of these statutes the coupled with the guilty intent, the accused question involved in English cases general committed every act going to make up this ly has been what is sufficient to amount to crime. The accused stood not on the doing a breaking out. See cases cited infra. of these acts, nor on the order of doing

The same doubt as to whether breaking them, except so far forth as was convenient out constituted burglary at common law, and necessary to accomplish his guilty which existed among the early English purpose. That this offense is burglary we judges, has arisen among the American can have no doubt.” judges. Thus, it was the opinion of the See also LAWSON V. Com. court in State v. Ward, 43 Conn. 489, 21 And in State v. Bee, 29 S. C. 81, 6 S. E. Am. Rep. 665, 2 Am. Crim. Rep. 27, that 911, where it was contended that as it did constitute burglary at common law, cused may have entered a room through an and that the statute of Anne should be re-open door, there being no proof that doors garded simply as declaratory of that law. were closed until the proprietor thereof reOn the contrary, in Rolland v. Com. 82 Pa. tired for the night, a requested charge 306, the court said that it did not think should have been given that there was no that breaking out was ever burglary at burglary, it was held that there was common law, admitting that there was a error in declining to give such charge as difference of opinion among the early Eng. there was evidence showing that accused lish judges which led to the passage of the was found in the room at a very unreasonstatute of 12 Anne, which was strong evi- able hour; that personal property disapdence that it was not the common law.peared, and that accused, when discovered, And in State v. McPherson, 70 N. C. 239, jumped through a window onto a piazza 16 Am. Rep. 769, the court said: “At and thence to the ground, making his

law it at least doubtfull escape from the premises through a gate

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The trial being at the indicting term, the , ease, although Sullivan had not been introcommonwealth admitted the truth of the duced. As to the carrying of the lard and affidavit, subject to competency and rele- flour to Crit Lawson's place in order to vancy. Toliver v. Com. 104 Ky. 760, 47 cast suspicion upon him and cause his arS. W. 1082.

rest and prosecution, the witness dɔes not The commonwealth did not introduce say that Sullivan did it, or that he heard Nathan Sullivan in chief. Defendant, in him say he did it, or had it done. He offering his evidence in chief, asked to have heard Sullivan in a conersation, and in read the affidavit. The appellants say that that way "learned” someone had done this the court erred to their prejudice in re- through Sullivan's instrumentality. It is fusing. It will be noticed that the affidavit not substantive or tangible evidence that was directed at Nathan Sullivan, "a chief the offense was committed by another than witness for the commonwealth," and he was Lawson. He does not relate the conversanot introduced. It undertakes to show bad tion. The affidavit amounts to no more feelings between the accused and this Sulli- than a conclusion of the witness, without

Such testimony ordinarily goes to the facts as a basis for it. The defendants affect the credibility of a witness, and that proved by certain witnesses that, on the state of feeling was freely admitted in this' night the offense was committed, they met which was usually kept locked, and had not Some of the cases holding that a breakbeen opened for two weeks. The court cited ing out is insufficient were decided under authorities to the proposition that a per-statutes which declare one guilty of burson who breaks out of a dwelling house by glary who breaks and enters. night is guilty of burglary if he entered by Thus, in Wine v. State, 25 Ohio St. 69, day with intent to commit a felony, or if a it was held that the unlawful breaking felony was committed therein before break- must precede the entry, under a statute ing out.

which provides :

“If any person shall in And in State v. Manluff, Houst. Crim. the night wilfully, maliciously and forcibly Rep. (Del.) 208, it was held that the break- break and enter into any

barn ing and entering, to constitute burglary by

with intent to steal, etc.," and so law, is complete where there is a breaking the crime of burglary was not committed out to escape.

where a person, without either an actual or But mere unlatching or breaking of a constructive breaking, entered a barn with door in an attempt to escape is not bur-intent to steal, and afterwards broke out of glary in Pennsylvania. Rolland v. Com. 82 the barn in making his exit therefrom. Pa. 306, 22 Am. Rep. 758. In the course of So, in White v. State, 51 Ga. 285, it was its opinion, the court said: “In the fifth held that under a statute declaring burg. report of the English commissioners on lary to be the breaking and entering into, criminal law, we find the following re etc.

, conviction of burglary could not be marks on burglary, which are so forcible had where one, for the purpose of commitand bear so directly upon this point as to ting a felony, entered a house through an justify their admission here: B the stat- open door, but in making his escape broke ute of 12 Anne, chap. 1, § 7 (subsequently out. The court stated that the statute of repealed and re-enacted), the crime of 12 Anne was not in force in Georgia; that burglary was extended to the case of an of- had it been the legislative will that such fender who, having committed a felony in a statute should remain in force, or that the dwelling house, or having entered therein words “breaking and entering into" should with intent to commit a felony, afterwards be subject to the construction insisted broke out of such dwelling house in the upon, the failure to express it in some of nighttime. This extension does not, we the Codes or in some of the acts modifying think, rest upon just principles. After a and extending the crime of burglary is infelony has been committed within the explicable. The court further said: "Our dwelling house, the offense is not in reality statute defines burglary. We go to the aggravated by lifting the latch of a door common law to get the meaning of the or the sash of a window in the nighttime in words used, as, for instance, that raising a order to enable the offender to escape. A window or opening a closed door is breakbreaking out, indeed, may be an innocent ing, and that entering does not require that act, as it may be committed by one desirous the whole body go in. But to say that of retiring from the further prosecution of where the words used are breaking and a crime, and the extension of the law of entering into,' this may mean entering into burglary to such a case is not warranted by and breaking out, because, by the statute the principles upon which the law is found of Anne, this was also made burglary, is ed, inasmuch as a circumstance not es- pushing the admitted right to go to the sential to the guilt of the offender or the common law for the meaning of words to mischief of the act is made deeply essential | an unwarranted extent. It required: to the crime. It is ineffectual even with a statute in England to do this; our statute view to the object proposed; the pretext uses the common-law words as they stood for the conviction fails in the absence of a before the statute of Anne, and we think breaking out which is a casual and un- they are to be taken to mean what their certain circumstance.'

plain language imports."

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Sullivan near to Lawson's house, and going door and held it fast. The partition door in the direction of it, carrying a can of stood open. The rear or kitchen door was lard on his shoulder. Then the common. latched, and also fastened with a peg at wealth introduced in rebuttal Nathan Sul- the floor. There was an open window in livan, and he denied that he carried any the front room. There was a trail of flour lard that night in the direction of Crit leading from the barrel at the front door Lawson's house. The defendant did not through the open partition door, and out ask him anything about the statements in the kitchen door. When the theft was disthe affidavit for continuance, nor did they covered, the kitchen door was latched, and then or afterwards offer to read the affi-| fastened at the floor as usual. These cirdavit.

cumstances indicate that the thief entered The appellants insist that the court through the open window, stole the flour should have given a peremptory instruction and lard, opened and carried it out through in their favor, because the proof failed | the kitchen door, then closed and fastened to show a breaking in. The lard and flour it from the inside, and made his exit was in a two-room house, into which Saw through the open window. It may be said yer expected to move in a few days. The that there was no proof of a “breaking barrel of flour was against the front room in,” and defendants therefore argue that, And following as authority White v. referred to, it has been held that unlocking State, it was held in Lockhart v. State, 3 and opening a hall door and running away Ga. App. 480, 60 S. E. 215, that breaking are sullicient to constitute a breaking out of out is not burglary under the statute. the house. Rex v. Lawrence, 4 Car, & P.

So, under a statute providing that “any | 231. person who, either in the night or day So, in Rex v. McKearney, Jebb, C. C. 99, time, with intent to steal, or to commit a where accused, being discovered at 11 P. M., felony, breaks into and enters

hid in the cellar; fled from the cellar and store

is guilty of burglary,” one locked himself in a room which had a shed who enters a store through the open door, roof and skylight, and had broken the skysecrets himself until the store is closed and light and gotten his head through, enlocked, and then, committing a larceny, deavoring to escape, when he was seen and opens or breaks a window and escapes with forced back, it was held that there was a the stolen property, cannot be convicted of sufficient breaking out of the house to burglary. Brown v. State, 55 Ala. 123, 28 constitute the crime of burglary. Am. Rep. 693.

So, also, if a lodger commits a felony, In Edwards v. State, 36 Tex. Crim. Rep. and in the nighttime even lifts a latch to 387, 37 S. W. 438, it was held that under a get out of the house with stolen property, statute providing that "burglary is consti- that is a burglarious breaking out of the tuted by entering a house by force, threats, house, the court stating that it is the puror fraud at night or in like manner by pose for which he undoes the fastening that entering a house during the day and re- makes the act unlawful. Reg. v. Wheeldon, maining concealed therein until night with 8 Car. & P. 747. the intent in either case to commit a felony But that the lifting of a trapdoor over a or the crime of theft," a breaking out did cellar, which was held down by its own not constitute burglary.

weight merely, was not sufficient breakAnd in St. Louis v. State, Tex. Crim. ing to constitute burglary, was held in Rex Rep. 59 S. W. 889, and Smith v. State, v. Lawrence, supra. Tex. Crim. Rep. —, 60 S. W. 668, prose

And in Rex v. Callan, Russ. & R. C. C. cutions under the same statute, it was held | 157, where accused broke out of a cellar by that the offense of burglary is not commit. lifting a very heavy flap which was not ted where one enters à store during busi- bolted, though it had bolts, six judges were ness hours, remains concealed therein, and of the opinion that there was a sufficient after the store is closed, commits a theft breaking to constitute burglary, as the and breaks out, although it should be weight of the flap was intended as sestated the decision probably turned on the curity, it not being the common entrance; question as to whether the subsequent theft but six judges were of a contrary opinion. related back to the entry so as to make it Counts in an indictment for burglary that a fraudulent entry.

the prisoner "did break to get out, and In order to convict one of burglary by "did break and get out,” were held inbreaking out of a building, the indictment sufficient, in Rex v. Compton, 7 Car. & P. must allege a breaking out, and so one can 139, under a statute which uses the words not be convicted of burglary by breaking "break out.” out of a building under an indictment al- In People v. Toland, 165 App. Div. 795, leging a breaking and entering a building. 151 N. Y. Supp. 482, where accused with State v. McPherson, 70 N. C. 239, 16 Am. accomplices entered barn through Rep. 769.

open door for the purpose of stealing a

heifer therein, and while securing and killUnder statutes contemplating breaking out. ing the heifer closed the barn door, and

opened the same when making his escape Under the English statutes previously with the stolen property, it was held that

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as it takes a breaking in to constitute the Giving to the statutes that construction reoffense of burglary, the case fails for want quired by $ 460, we are of the opinion that, of proof. On this proposition, the question if the goods be stolen, it is immaterial is whether, under our statute, the offense whether the theft be accomplished by is committed, if, in stealing articles, the breaking in or breaking out. Proof of house is either broken into or broken out breaking of some sort is essential. Breakof.

ing is established in the mere turning of Section 1162 of the Kentucky Statutes, a knob or opening of a latched door, but with reference to this matter says: “If any whether that breaking occurs before or person

shall feloniously break any after the theft does not alter or lessen dwelling house

and feloniously the degree of the offense. When the thief take away anything of value. ..." opened the kitchen door, he broke the house,

Section 1164 says: "If any person shall although it was a breaking out. feloniously

break any warehouse, Entry by breaking is not a requisite by with intent to steal, or shall felon- our statute. Under the English common iously take therefrom or destroy any goods. law, the old offense was committed by

breaking and entering, and it was then Section 460 of the statute provides as held that it was not an offense to enter follows: “The rule of the common law that without breaking, and afterwards break statutes in derogation thereof are to be out in order to make an escape. To obvistrictly construed is not to apply to this ate this, the state of 12 Anne was enrevision; on the contrary, its provisions acted, in which it was declared that one are to be liberally construed with a view was guilty of burglary if he broke out of to promote its objects. . . .”

a house with intent to commit a felony, The breaking and the stealing are the so that to-day in England the offender is two ingredients of this offense, as described prosecuted under the common law if he by the statutes above referred to, and the breaks in, and by statute if he breaks out. purpose of the law was to punish theft of Some American states have enacted spegoods from such houses. The moral wrong cial statutes making it burglary to break is done when the two elements appear, out, but in our opinion the Kentucky statwithout regard to which was done first. / ute was written to cover the offense withsuch opening of the door was not a break-, seems plain. The crime depends upon the ing out so as to constitute burglary within acts of the party accused, and not upon the the meaning of $ 404 of the Penal Code, acts of the owner of the building. If a thief which reads as follows: "A person who, breaks the door of a building with intent to

being in any building, commits a steal therein, it is immaterial who closed crime therein and breaks out of the same, the door, because the statute is silent upon is guilty of burglary in the third degree.' that question. The material facts are the The court said the door was found open. I thief, the closed door, and the opening of "It was not shut by the owner or anyone the door with a criminal intent. Under else as against intruders. It was closed, if subdivision 2 it is immaterial who closed entirely closed, by the defendant and his ac- the door or when it was closed. The macomplices temporarily, and for the purpose terial facts are, so far as we are interested of securing the object of their larceny. If in the question, a person (either lawfully the door had not been closed, the crime or unlawfully) in the building who comwould simply have been larceny.

mits a crime therein and opens a door in Because they themselves closed the door, order to get out. We cannot use force upon wholly or partly, for the purpose either of the statute and warp it from its plain concealment or of making more sure of meaning by finding exceptions not wartheir theft, can hardly be deemed to have ranted by its language or the clear legisaltered their crime, and to hold that the lative intent. The facts in this case do opening of the door which they themselves not invite such action. Here the owner left had closed had increased their crime would the barn door open so that the heifers could seem to be a characterization of a greater go in or out at will. The defendant and crime without any additional invasion of his accomplices entered the barn for the the rights of the owner. The criminal law purpose of killing a heifer therein. The should be strictly construed. Under this first heifer sought to be killed escaped rule of construction, I am unwilling to through the open door. Then they closed hold that the breaking out of a building is and fastened the door, one of them guardan element of a crime, unless through the ing it while the others proceeded to kill the opening of a door not closed by the defend remaining heifer. The door was closed to ant himself.” But in a well-reasoned dis- keep the heifer from escaping and also senting opinion, in which Woodward, J., probably to lessen the chance of detection. concurred, Kellogg, J., said, in construing They made use of the closed door in comthis section of the Penal Code: “The lan- mitting and in protecting themselves while guage is not ambiguous and the meaning committing the larceny. Their act in thus

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