State v. Lisiewski ( 1969 )

Corrigan, J.

The principal issue raised in this appeal is whether each of the houses entered was an “inhabited dwelling house” within the meaning of those words as used in Section 2907.09, Revised Code.

Appellant contends that the dwellings in question were “summer” homes which, although furnished, were not occupied; that therefore they were not inhabited dwelling houses.

In construing an earlier version of Section 2907.09, Revised Code, this court, in State v. Mason, 74 Ohio St. 65, held:

“Within the meaning of Section 6835, Revised Statutes, which prescribes imprisonment for life as the punishment of the crime of burglariously entering an inhabited dwelling-house, a dwelling-house is inhabited when the family have gone for a vacation leaving servants in charge of the house, though when it is burglariously entered the servants may be temporarily absent upon an errand.”

The facts in Mason are distinguishable from those in the present case, as in that case servants were left in charge of the house during the proprietor’s absence. However, in the course of the opinion Chief Justice Shauck stated, at page 78:

“* * * A dwelling-house is a building which by the mode of its construction or reconstruction is suitable for a habitation. An inhabited dwelling-house is such a house used as a habitation. The ordinary use of a habitation embraces the protection and shelter of household goods and wearing apparel whether the inhabitants are present or absent. The proprietor of this dwelling-house was a school teacher. During the school year he inhabited it with his wife. When they went away to return at the close of his vacation, leaving their household goods and deities within its protecting walls and shades, they did not cease to inhabit it. * * * If this view is correct, it is of no legal significance whatever that servants were left in charge of the house during the absence of the proprietor and his wife.”

We agree with that reasoning and believe that where the inhabitant of a dwelling house absents himself from it for a period of time, leaving therein household goods or other indicia of occupancy, intending to return to the house, he does not cease to inhabit it.

Where a person establishes one, or more than one, home as a dwelling house, each retains the character of an “inhabited dwelling house” so long as he intends each such home to be a place of habitation for himself, even though he and members of his household are absent from it for a period of time.

The only effect which a length of the inhabitant’s absence from such a house would have on its character as an “inhabited dwelling house” would be in connection with his intention of returning. Lapse of time, alone, is insufficient to change such character where the record clearly shows a fixed intention of returning. The animo revertendi is the controlling consideration.

This view appears to be the general rule. Annotation, 85 A. L. R. 428; 13 American Jurisprudence 2d 321, Burglary, Section 4. See, also, Perkins on Criminal Law (2 Ed.), 203, Section 1.

Appellant raises questions as to proof of entry and the trial court’s instructions to the jury on the issue of alibi. Those questions relate principally to the weight of the evidence. An examination of the instructions given on the issue of alibi indicates that the instructions given were proper.

It is contended that the trial court erred in submitting instructions on aiding and abetting. Appellant argues that it was necessary to prove that he was actually present as he could not be charged in Ohio for acts done in Michigan. However, appellant overlooks the fact that under Section 1.17, Revised Code, an aider and abettor is tried “as if he were the principal offender.” In other words, he is tried as if he did the acts himself and under such a statute physical presence is not required. 21 American Jurisprudence 2d 202, Criminal Law, Section 129; 22 Corpus Juris Secundum 253, Criminal Law, Section 86.

Appellant claims prejudicial error due to the activities of the sheriff at the trial. He complains that the sheriff not only escorted him to the courtroom but that he remained there and subsequently testified, although separation of witnesses was ordered, and that he was placed in charge of the jury when it retired to deliberate. While appellant claims generally that the sheriff’s presence was “impressive,” he points to no specific acts which in themselves operated to his prejudice. In fact, the sheriff’s only testimony was in connection with the identification of an exhibit and could not have been affected by what he heard during the course of the trial.

It is contended by appellant that the trial court erred in permitting a handwriting expert to compare the writing on a card, which was in Thomas’ possession and which contained a list of items stolen, with the writing on a note given by appellant to the sheriff requesting flashlight batteries. It is claimed that the note was not properly identified as appellant’s handwriting. However, the sheriff stated that the note came from appellant’s cell and was handed to him personally on a tray. This was sufficient identification to permit its use as a handwriting sample.

Appellant argues in this court that the trial court abused its discretion in allowing only 15 minutes for argument on his motion for new trial and that he is being subjected to cruel and unusual punishment. It does not appear that those issues were raised in the Court of Appeals and thus we will not consider them now. Toledo v. Reasonover, 5 Ohio St. 2d 22.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Matthias, O’Neill, Schneider and Duncan, JJ., concur. Taft, C. J., and Herbert, J., dissent in part.