Barry
People v. Barry
Opinion
Concurring Opinion
Haven, J.
I concur in the judgment, but dissent from so much of the opinion of Mr. Justice Garoutte as seems to hold that one who enters the store of another with intent to commit larceny therein is guilty of burglary, although the entry was open, and with the actual and free consent of the owner. I do not think that this is a correct interpretation of our statute defining the offense of burglary. I think, in order to constitute a burglarious entry, the act of entering must be itself a trespass,—an intrusion into the building alleged to have been entered, an entry without the consent of the owner. (State v. Moore, 12 N. H. 42.) The evidence was wholly insufficient to justify the verdict in this case, and the jury should have been advised to acquit the defendant.
McFarland, J., and Harrison, J., concurred.
Dissenting Opinion
Beatty, J.
I dissent. I find no error in the record.
Lead Opinion
Garoutte, J.
The appellant was convicted of the crime of burglary, and appeals to this court from the judgment and order denying his motion for a new trial.
The most important assignment of error relied upon to reverse the judgment may be reviewed by a consideration of a certain instruction which was requested to be given to the jury by appellant,, and which request was refused by the court. The proposed instruction was based upon the evidence, which disclosed that the offense of burglary was committed,, if committed at *482 all, by appellant entering a grocery store during business hours, and attempting to commit larceny therein. The instruction is as follows: “ The defendant cannot be convicted of the crime if he had a right to enter the store of Murry & Seegelkin at the time alleged in the information, even if you believe from the evidence that at the time he entered he intended to commit larceny.” Viewed in the light of section 459 of the Penal Code, which says: “ Every person who enters any house, room, store, .... with intent to commit grand or petit larceny, or any felony, is guilty of burglary,”—the ruling of the court is correct. This section of the code is clear and concise, and its…