Opinion
No. 38314.
January 14, 1952.
1. Indictments — burglary — proof — variance.
The indictment charged that the defendant with another "did then and there wilfully, unlawfully, feloniously and with force and arms burglariously break and enter a certain building, to wit, a dwelling house, the property of Hubert Swan, with the felonious and burglarious intent of them, the said defendants, then and there to take, steal and carry away the goods, wares, and personal property of the said Hubert Swan which said goods, wares and personal property were then and there of value and were kept in said dwelling for use and deposit", and the proof showed that the house had been occupied by the former owner as a dwelling but on its purchase by Swan he was having it repaired before moving into it as his dwelling place, during which time the burglary of it occurred: Held, that there was no variance between the allegations of the indictment and the proof. Secs. 2036, 2038, 2043 Code 1942.
Headnote as approved by Lee, J.
APPEAL from the circuit court of Lamar County; SEBE DALE, Judge.
H.B. Cubley, for appellant.
In the case of Haynes v. State, 180 Miss. 291, 177 So. 360, it was held that when a person leaves a dwelling with no intention of returning, then the house is no longer a dwelling-house. The case was a situation where the owner of the house had moved the day before the burglary and had taken part of her furniture out and left part of it there; even in this situation, the court held that the house was no longer a dwelling.
As concerns the state of construction of the house, the Court held in the case of Woods v. State, 186 Miss. 463, 191 So. 283, that a house which has been completed but not yet occupied is not a dwelling-house within the meaning of the statute on burglary. Since the indictment was drawn under Sec. 2038, Code 1942, we submit that the case of Woods v. State is controlling here. In the above case in paragraph 1 of the opinion is stated the following rule: "Appellant submits that if a dwelling-house, from which the occupants have permanently removed, is not a dwelling-house within the statute on burglary, then, upon the same reasoning, a house into which no dwellers have yet moved is not a dwelling-house; and in this contention appellant is clearly correct."
Geo. H. Ethridge, Assistant Attorney General, for appellee.
I think Sec. 2038 Code 1942 does not require that the person owning a dwelling-house should be actually living in the house under the circumstances related, and I ask the Court to contrast Sec. 2036 with Sec. 2038, for it is clear to me that Sec. 2036 requires the house burglarized to be at the time of the burglary occupied by some human being. There is no such requirement as to occupancy in Sec. 2038. Our statutes provide for burglary in a good many different instances. It seems that Sec. 2036 required to make the difference thereunder provided as an essential element of the crime, that some person must be occupying the house at the time, and by necessary construction under Sec. 2038 would mean any house that was a dwelling-house belonging to another person than the one who broke or entered it, whether occupied or not, was an offense different from that denounced by Sec. 2036. The term "dwelling" or "dwelling-house", when used alone, is one of the various meanings depending upon circumstances. In 19 C.J. 843 are statements which show the variations in the meaning of the terms, and also that it is dependent as to meaning upon the connection in which it is used.
In State of West Va. v. Mason Bair, 166 S.E. 369, 85 A.L.R. 424, there is an illuminating discussion of this phase of burglary. In the first syllabus in the A.L.R., it is stated that in a building suitable for residential purposes, having been so designated and used, being equipped with household furnishings, etc., remains a dwelling-house although temporarily unoccupied if the absence of the householder be with intent to return. Entry of such temporarily unoccupied building, in the nighttime, with or without breaking, with intent to commit a felony or any larceny therein, constitutes burglary.
This case has many citations illustrating its holding, which I submit are applicable to the case at bar, but that the case at bar is stronger, by reason of the two statutes mentioned above and by reason of the West Virginia case. There is also an annotation to the case, reported in 85 A.L.R. 428, which enters into many phases of burglarizing a dwelling. There is cited in this case note at page 429 the case of Schwabacher v. People, 165 Ill. 618, 46 N.E. 809, where it was said, "It is well settled that to constitute a building a dwelling-house it is not necessary that any person should be actually in the house at the time a burglary is committed. Nor will a dwelling-house cease to be such because of the temporary absence of its occupants, even though another dwelling-house may be established for the time being. In all such cases the intention to return is the controlling consideration."
Other cases are cited in this case note to the same effect, which seems to me to be in perfect harmony with Sec. 2038. Due to the fact that our statute has made a distinction requiring in one section (2036) that some person be occupying the house at the time of the burglary, and in the other section (2038) not requiring it to be occupied, it is manifest that the Legislature intended to punish entering any house that could be characterized as a dwelling, whether occupied or not. Taking our statutes all together, it is quite evident, I think, that burglarizing a dwelling, although not at that time occupied, is burglary. But when the building is occupied, as provided in Sec. 2036 Code 1942, a severer penalty is provided.
Dick Williams was convicted of the crime of burglary and was sentenced to serve a term of one year in the state penitentiary. From the judgment and sentence, he appeals.
The building in question was a residence, and was owned by Hubert Swan. After its purchase from one Hartfield, who had moved out, Swan was making alterations before moving in. The proof by the State, which consisted of evidence by a coindictee and corroborating circumstances, was ample to show that the building was burglarized, and that Williams was guilty.
The appellant contends that the trial court erred in refusing his requested peremptory instruction on account of an alleged variance between the allegations of the indictment and the proof, namely, that the indictment charged the burglary of a dwelling, whereas the proof showed that no one was living in the house at the time.
Section 2036, Code of 1942, pertains to the burglary of inhabited dwellings, where the intent is to commit some crime therein. Section 2038, Code of 1942, pertains to the burglary of dwellings generally, where the intent is to commit some crime therein. Section 2043, Code of 1942, pertains to burglaries elsewhere than in dwellings. It enumerates various places, as shop, store, etc., "or other building * * * in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony * * *."
The indictment, omitting the formal parts, charged that the appellant "did then and there willfully, unlawfully, feloniously and with force and arms burglariously break and enter a certain building, to-wit; a dwelling house, the property of Hubert Swan, with the felonious and burglarious intent of them, the said defendants, then and there to take, steal, and carry away the goods, wares, and personal property of the said Hubert Swan, which said goods, wares and personal property were then and there of value and were kept in said dwelling for use and deposit, * * *". (Emphasis supplied.)
Thus, the indictment charged the burglary of "a certain building, to-wit; a dwelling house" with intent to steal, and that "goods, wares, and personal property were then and there * * * kept in said dwelling for use * * *". Evidently the expression, "a certain building, to-wit; a dwelling house" was an effort to follow the language in Section 2043, supra, "or other building", and apprise the accused that the building fell into the category of dwelling house, as distinguished from shop, store, outhouse or barn, etc. There was good reason so to identify it. Actually, it had been inhabited in the past, and as soon as the repair could be completed, it would be occupied again as a place to live. Further evidence of the intention to initiate the prosecution under Section 2043, supra, was the allegation that "goods, wares and personal property were then and there * * * kept in said dwelling house for use."
Now in Haynes v. State, 180 Miss. 291, 177 So. 360, 361, the indictment charged that the appellant "did then and there willfully, unlawfully, feloniously and burglariously break and enter the dwelling house of Mrs. E. Hollingsworth". The opinion observed that the indictment was drawn under Section 2038, Code of 1942. In view of Mrs. Hollingsworth's admission that she had moved out of the house, with no intention of living there any more, and that, admittedly, the burglary occurred thereafter, the Court held that there was a fatal variance between the allegations and the proof.
Also in Woods v. State, 186 Miss. 463, 191 So. 283, the offense charged against Woods was the burglary of a dwelling house — "A dwelling house, the property of T.A. Cook, then and there situated, feloniously and burglariously did break and enter." Inasmuch as the proof showed that the building had been recently erected for a dwelling house but was not actually occupied as such, the Court held that there was a variance between the allegations and the proof.
But our conclusion that the indictment is founded on Section 2043 distinguishes this case from Haynes v. State and Woods v. State, supra.
Consequently, we are of the opinion that there was no variance between the allegations of the indictment and the proof, and that the court correctly overruled the motion for a directed verdict.
The other assignments, namely, the State's failure to show intent, and the refusal of instructions, which attempted to explain the legal meaning of dwelling house, are without merit, and require no response.
Affirmed.