State v. McBeth , 49 Kan. 584 ( 1892 )

Opinion by

Green, C.:

This was a prosecution against I. N. McBeth under § 107 of the crimes act. The defendant was charged with unlawfully and maliciously injuring the doors of a certain building, owned by the defendant and two other persons, while the same was occupied by tenants. The evidence upon the trial established the fact that Brooks & Co. leased from the defendant, W. M. Kinnison, and C. H. Clark, the building in question, by the month, for a meat shop, and had paid the rent until the 1st day of November, 1890. On the 25th day of October, Brooks & Co. moved most of their things out of the building and locked it up. The defendant offered to refund the rent from the time the building had been vacated to the expiration of the month, and asked to be permitted to take possession of the building, which was refused. He then forced open the back door, which had been fastened by a bolt upon the door and a socket which held the bolt on the casing of the door frame. The socket was secured by two screws, which came out and the door opened. He entered the building through the back door and opened the front doors, and put a tenant in possession of the building. The socket was replaced upon the casing of the back door frame on the same day. There was no evidence to show: that there was any other injury done to the doors or building. The defendent was tried and convicted, and sentenced to pay a fine of $10 and costs, and ordered to be committed to jail until the fine and costs were paid.

The language of the crimes act, under which the defendant was prosecuted, so far as it affects the offense charged, reads as follows: “Every person who shall willfully, unlawfully and maliciously break, destroy or injure the door . . . of any shop or building being the property of another.” The defendant was charged in the information with willfully, unlawfully and maliciously breaking, destroying and injuring the front and back doors of said shop, and with breaking the locks of said doors and breaking open the same while closed,, and forcibly entering the building. It is urged that, under the state of facts as disclosed by the evidence, no offense was committed under this provision of the statute. We think that the words “break or destroy,” as used in this section of the crimes act, mean to destroy the completeness of anything.. Now, can it be said that any of the doors to this building .were broken, injured, or destroyed? A door is defined to be “ a movable barrier of wood, metal, or stone, or other material, consisting sometimes of one piece, but generally of several pieces together, and commonly placed on hinges, for closing a passage into a building, room, or other inclosure.” (2 Cent. Dict., p. 733.) The evidence clearly established the fact that the doors were not damaged in the least. Two small screws were pulled out of the casing which inclosed the back door, and these were replaced the same day. This was the extent of the injury. Under this state of facts, we do not see how it can be said that an offense was committed under this section of the statute. The doors were not damaged; and the' slight injury in forcing the screws out of the casing of the door frame could hardly be said to be an injury to the door. We do not think the statute was intended to cover such a case as this. Honest disputes as to who is rightfully entitled to the possession of property should not be settled by the aid of the criminal law.

We are of the opinion that the verdict and judgment of the court are unsupported by the evidence. It is recommended that the judgment of conviction be set aside, and that a new trial be granted.

By the Court: It is so ordered.

All the Justices concurring.