State v. Syddall , 20 Utah 2d 73 ( 1967 )

TUCKETT, Justice:

The defendants were found guilty of burglary in the second degree and from the verdict and the judgment of the court sentencing the defendants to imprisonment they have appealed. ;

The defendants were apprehended during the nighttime while they were within the Lockhart Company building in Clearfield, Utah. The Lockhart Company building was situated between the Barlow Furniture Company building and the Clearfield State Bank building. The bank building was to the south of the Lockhart building and the furniture company building was to the north. The buildings did not have common walls but the separate walls of the buildings were constructed side by side.

The evidence shows that the defendants had broken into the Barlow Furniture Company building and that they had made an opening through the wall into the building occupied by Lockhart Company. At the time the activities of the defendants were interrupted by the officers they had removed a portion of the walls between the Lockhart building and the bank building. The vault of the bank had been exposed but no opening had been made therein. At the scene there were numerous tools, together with dynamite, electrical wire, blasting caps and batteries to detonate the same.

There was no evidence that the defendants had taken anything from the Lock-hart Company. The proprietor of Barlow Furniture Company testified that he had left approximately $20 in coins in the cash register in the furniture store. After the apprehension. of the defendants the change left in the cash register was missing.

Defendants seek reversal of their conviction and sentences on two grounds, (1) the defendants claim that they were not given a preliminary hearing on the charge of which they were convicted, and (2) that the evidence was insufficient to support a conviction of burglary in the second degree.

The defendants were initially charged with burglary in the first degree in that the defendants entered the building occupied by Barlow Furniture and the Lock-hart Company in the nighttime with intent to commit larceny by means of explosives. At the close of the evidence the court dismissed-the charge of burglary in the first degree and submitted to the jury the included offense of burglary in the second degree.

Prior to trial the State had moved to amend the information at which time the defendants objected to the amendment on the grounds that it would in effect charge the defendants with a crime upon which they had had no preliminary hearing. The court indicated that it would, if the defendants so moved, remand the case for a further preliminary • examination. Counsel for the defendants at that hearing stated to the court that he did not think'the defendants should be obligated 'to 'incur' the time and expense 'of another preliminary hearing. Counsel went on to state as. follows : .

So we will make no further requests for further preliminary hearing, and-are prepared at this time to ask for a" trial setting. '

It is quite clear .that the defendants,by.declining to ask for a further preliminary examination after the court had offered to remand, the case for that purpose .waived any objection .they may have had at that time of not having had a preliminary hearing. The defendants’ claim of error on this ground is without merit.¹ . ...

The gravamen of offense of burglary in he second degree is the entry into a building or other enclosure mem tioned in the statute with a' specific intent to commit larceny or some other' felony. The evidence of record amply supports the finding of the jury that the defendants entered the building occupied by Barlow Furniture Company and the Lockhart Company; that such entry occurred in the nighttime; and that the defendants had an intention to commit larceny. The evidence need not show that a larceny or other felony was in fact committed on the premises entered, but it is sufficient if the evidence shows that at the time of the entry the defendants had the intention to commit larceny or some other felony.²

After carefully considering the appellants’ claim of errors on the part of the trial court, we are of the opinion that the errors complained of by the defendants are without merit and the judgment of the court below is affirmed.

CROCKETT, C. J., and HENRIOD, J., concur. CALLISTER, J., concurs and also concurs in the views expressed by ELLETT, J-

1 . State v. Gustaldi, 41 Utah 63, 71, 123 P. 897; State v. Freeman, 93 Utah 125, 71 P.2d 196; State v. Jensen, 103 Utah 136 P.2d 949.

2 . State v. Evans, 74 Utah 389, 396, 279 P. 950; State v. Tellay, 7 Utah 2d 308, 324 P.2d 490; State v. Hopkins, 11 Utah 2d 363, 359 P.2d 486.