State v. Grubaugh , 54 N.M. 272 ( 1950 )

LUJAN, Justice.

Roy Grubaugh and Grady Hancock were jointly tried under separate informations, the charging part of which read as follows: “That the defendant, Grady Hancock, did in Lea County, New Mexico, on the 15th day of August, unlawfully and feloniously break and enter in the night time a shop and warehouse, to-wit: — The Car Parts Depot, Incorporated, Hobbs, New Mexico, with the intent to commit larceny therefrom, contrary to the Statutes in such cases made and provided.”

The information against Roy Grubaugh was identically worded. Upon the trial they were convicted of burglary and appeal.

Section 41-906, Compilation 1941, provides : “Every person who shall break and enter, in the night-time, any office, shop, or warehouse, not adjoining to nor occupied as a dwelling-house, with the intent to commit the crime of murder, rape, robbery, larceny, or any other felony, shall be punished. * * * ”

The evidence discloses that the night watchman on two previous inspection trips, prior to 3:30 o’clock on the morning of August IS, 1948, found the back door of the Car Parts Depot locked and in perfect condition. This door was equipped with a Yale style lock which is opened from the outside with a key and has a little knob on the inside. On his final inspection of the premises, on the above date, before going off duty, at approximately 3:30 in the morning he encountered the defendants working on the back door of the building but both broke and ran away before he could arrest them. He later apprehended them and turned them over to the city police. Upon examination of the premises it was found that the ground had been dug out about three inches deep at approximately four feet from the door. Two planks, about four feet long, were lined up against the door sill. The lock had been pried open by inserting a slim piece of metal and the door was ajar two inches. There were several marks made by a metal instrument being pushed between the facing and the door also some marks made below the lock and where the lock was. The defendants did not testify.

The sole error assigned is the overruling of their motion for a directed verdict at the close of the State’s case, and reliance is placed on the failure of the prosecution to show an entry. The evidence shows that the lock had been pried by the use of some .metal . instrument, during the time," and that the door was open some two inches, the approach of an officer and the flight of the defendants.

The defendants’ contention that the evidence is insufficient must be sustained. We fail to find any substantial evidence to prove an entry.

There is no evidence in the record that either of the defendants actually entered the building. To warrant a conviction for burglary, the evidence must be sufficient to prove not only a breaking but an entry. Evidence which leaves it wholly to conjecture, as in the case at bar, is wholly insufficient. Sorenson v. United States, 8 Cir., 168 F. 785; State v. McCall, 4 Ala. 643, 39 Am.Dec. 314; Walker v. State, 63 Ala. 49, 35 Am.Rep. 1; Gaddie v. Commonwealth, 117 Ky. 468, 78 S.W. 162, 111 Am.St.Rep. 259; Mattox v. State, 179 Ind. 575, 101 N.E. 1009. See, also, 9 C.J. page 1020, 12 C.J.S., Cancellation of Instruments, § 51, and Wharton on Criminal Law, 11th Ed. page 1203.

If we were authorized to conjecture, we might reason that in prying the lock, either of the defendants might have inserted his hand in the building. Assuming this would have constituted entering, there was no proof of that fact, nor was there any evidence from which it could have been reasonably inferred.

It may be that the defendants were guilty of violating Section 41-908, Comp.1941, if they had in their possession tools “adapted, designed or commonly used for the commission of burglary, * * * under circumstances evincing an intent to use or employ or allow the same to be used or employed in the commission of a crime *

The act of prying the lock as shown by the record, in >and of itself, did not, and could not, constitute the crime of burlgary, in the absence of the required proof that there was an entry with intent to commit a felony, Section 41-906 supra.

The judgment is reversed and the cause remanded with direction to award the defendants a new trial. It is so ordered.

BRICE, C. J., and McGHEE, J., concur. SADLER and COMPTON, JJ., dissenting.