Linbeck v. State , 1890 Wash. LEXIS 69 ( 1890 )

The opinion of the court was delivered by

Hoyt, J.

This action was commenced in the superior court of Chehalis county by the filing of an information. therein in substance as follows:

“George J. Moody, prosecuting attorney of the State of Washington for the district comprising the counties of Wahkiakum, Chehalis and Pacific, in said state, on oath accuse John Linbeck by this information of the crime of burglary, committed as follows, to wit: The said John Linbeck, on the 28th day of February, A. D. one thousand eight hundred and ninety, and within one year next preceding the date hereof, in the county of Chehalis, aforesaid, in the State of Washington, did then and there in the night time of said day, unlawfully break and unlawfully enter the dwelling house of one James Arland, there situated, with the intent then and there to commit a misdemeanor therein, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Washington.”

Defendant pleaded thereto “not guilty.” Trial was had, a verdict of guilty rendered, and judgment and sentence imposed. Whereupon defendant has brought the case to this court for review.

Th e first ground of reversal relied upon is, that the information does not state facts constituting a public offense. The contention in this regard being, that it is not only necessary to charge that the entering was with an intent to commit a misdemeanor, but that the particular misdemeanor which he intended to commit must be set out. This contention is borne out by numerous authorities which the diligence of counsel has gathered for the information of this court; and we believe it to be the law in most of the states, and that it would clearly be the law here were it not for § 828 of our code. Said section is as follows: “ Sec. 828. Every person who shall be guilty of any such unlawful entry or unlawful breaking and entry as described in the next preceding section, shall be deemed to have made such entry or breaking and entry with intent to commit a misdemeanor or a felony, unless such enfay or breaking and entry shall be explained by testimony satisfactory to the jury trying the case to have been made for some purpose without criminal intent;” and by virtue of its provisions the prosecution is no longer compelled to prove with what intent the defendant enters, but on the contrary, the unlawful entering having been proved, the intent to commit a crime or misdemeanor is presumed; and this being so, we are unable to see how the accuracy required before such section was enacted can now aid the defendant. The burden of showing the intent with which he entered is, by said section, cast upon him, and he can show such an intent to have been an innocent one as well without the details as to his specific intent as with it. Aided by the section above quoted the information was sufficient.

The defendant was not sworn as a witness in his own behalf, and the court failed to instruct the jury as required by statute that from such fact no inference of guilt should be drawn. We think this was error. The statute in question makes it the duty of the court to give such instruction, irrespective of the action of the defendant in relation thereto, and while we do not now hold that the right to have this instruction given may not be waived by some express act of the defendant to that end, we do hold that the simple fact that he remained silent did not amount to such waiver.

The court, upon the request of the jury, and in the absence of the defendant (he being then confined in jail), repeated certain of the instructions which he had given to the jury, and orally explained the meaning thereof, and we think this was error. And we do not think this error was cured by the fact that defendant’s attorney was present and made no objection. Some other errors are founded upon the manner in which the instructions were given. But as these errors, if errors they were, are not likely to occur on a retrial of the cause, we do not think it necessary to discuss them.

The judgment and sentence of the lower court must be reversed and a new trial granted; and it will be so ordered.

Scott and Stiles, JJ., concur. Dunbar, J., not sitting.