State v. Lewis

Fullerton, J.

— The appellant was informed against for the crime of burglary, the charging part of the information being as follows:

“The said George Lewis, on the 8th day of December, A. D. 1905, in the county of Chehalis, in the state aforesaid, then and there being, did then and there, in the nighttime of said day, feloniously, unlawfully break and unlawfully enter the warehouse of the Northern Pacific Railway Company, a corporation doing business in the state of Washington, said warehouse then and there being a building in which goods, merchandise and valuable things were kept on deposit, and situated in the city of Montesano, in the county and state aforesaid, with the intent then and there to.commit a misdemeanor or felony therein.”

To this information the appellant demurred on the ground that it was not direct and certain as to the crime charged, and after trial and conviction, moved in arrest of judgment on the same ground; contending that the information was fatally defective because it charged the intent with which the building was entered in the alternative.

The general rule undoubtedly is that, where a statute enumerates in the alternative several acts the doing of which constitutes a crime, or where the intent or purpose necessary to constitute the offense is set out in several aspects disjunctively, it is necessary, if the several acts or several intents or purposes are to be joined in one indictment or information, to state them conjunctively, using the copulative “and” where the statute uses the disjunctive “or.” But this rule, in so far as it relates to the intent in an indictment or information for burglary, has been changed by statute in this state* Burglary, as defined by § 7104 of the code (Ballinger’s), (P. 0., § 1606), consists of the unlawful entry in the nighttime, or the unlawful breaking and entry in the daytime, of any building in which goads and merchandise or valuable things are kept for use, sale, or deposit, with intent to commit a misdemeanor or felony. By § 7105 (Id.), (P. C., § 1607), it is provided that any person who makes such unlawful entry, or breaking and entry, as defined in the preceding section, shall be deemed to have made the same with intent ta commit a misdemeanor or felony, unless the entry is explained by testimony satisfactory to' the jury trying the case to have been made for some purpose without criminal intent.

Construing this statute, we have held that the state is not required to prove the specific intent with which a defendant unlawfully enters the building, but on the contrary have held that, when it shows that there was an unlawful entry in the nighttime, or an. unlawful breaking and entry in the daytime, it malms a prima facie case to the effect that the entry was made with intent to commit either a misdemeanor or a felony, and casts the burden of showing that the entry was for a purpose without criminal intent ■ on the defendant, State v. Wilson, 9 Wash. 218, 37 Pac. 424; State v. Anderson, 5 Wash. 350, 31 Pac. 969; Linbeck v. State, 1 Wash. 336, 25 Pac. 452. This construction of the statute is tenable only on the principle that the legislature in defining the crime of burglary, used the words “misdemeanor or felony” in the sense of “crime,” intending to make it burglary to unlawfully enter a building under the circumstances defined with intent to commit any form of crime whatsoever. We think now that this is its proper construction and, giving it that construction, the crime of burglary is correctly charged by using the language of the statute.

Informations for burglary, charging the intent in the form of the one now in question, were before this court in the cases of State v. Garbe, 34 Wash. 395, 75 Pac. 993, and State v. Randall, 36 Wash. 438, 78 Pac. 998. In the first case the information was upheld, and in the second, although the information was held insufficient on another ground, its sufficiency was not questioned on the ground here urged. More>over the statute expressly provides that, when the crime may be committed by the use of different means, the- indictment or information may allege the means in the alternative; and, further, that no indictment or information shall be held insufficient for any matter which was formerly deemed a defect but which does not tend to the. prejudice of the substantial rights of the defendant upon the merits. Bal. Code, §§ 6844, 6851 (P. C., §§ 2097, 2104). While perhaps these cases and this statute are not directly in point on the question now urged, they sustain the general judgment of the court below to the effect that this defect in the information, if a defect at all, is not material.

The judgment is affirmed.

Mount, C. J., Hadley, Rudkin, Dunbak, Ckow, and Root, JJ., concur.