Opinion of the Court-Beatty, J.

By the Court, BEATTY, J.:

The defendant was convicted of burglary, and on appeal from the judgment assigns numerous errors, most of which involve more or less directly the construction of the statute defining that crime. It is defined as follows: "Every person who shall, in the night-time, forcibly break and enter, or without force (the doors or windows being open) enter any dwelling-house, tent, etc., with intent to commit murder, robbery, * ** petit larceny, or any felony, shall be deemed guilty of burglary," etc. (Comp. Laws, sec. 2365.) The position of the appellant is that there are two distinct crimes designated by the name of burglary; that is to say, to break and enter is one burglary or sort of burglary, and to enter, without breaking, through an open door or window is another burglary; and that a person indicted for breaking and entering cannot, on that indictment, be tried or convicted for entering without force. But we think if the first branch of this proposition were conceded, the second would not follow. On the contrary, it is expressly provided in our criminal practice act that, "In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or he may be found guilty of an attempt to commit the offense charged." (Comp. Laws, sec. 2037.) By virtue of this provision, a person indicted for murder may be convicted of manslaughter, and it is not a very bold exaggeration to say that we have had almost daily experience of such verdicts in this state without a suggestion ever having been made that they were unauthorized. If, then, a man, indicted for killing with malice, may be convicted of killing without malice, why may not a man, indicted for entering with force, be convicted of entering without force? If there is any principle by which the two cases can be distinguished, it exceeds our capacity to discern it. Upon this consideration alone most of the assignments of error appear to be totally without merit. But we choose to place our decision upon a broader ground.

The necessary, if not the obvious, construction of the

Opinion of the Court-Beatty, J.

statute is, that there is but one species of burglary, the essential definition of which is the entering in the night-time any dwelling-house, tent, etc., with intent to commit petit larceny, or any felony. An indictment showing these facts, by proper averments, would authorize a conviction of burglary, whether the proof showed an entry effected by the use of crowbars or giant powder, or by slipping through an open door. Taking the language of the statute, it is clear, in the first place, that the words in parenthesis (the doors or windows being open), are entirely unnecessary to the sense and merely intended to be explanatory; the legislature apparently fearing that it might not otherwise be known that an entry without force is a legal impossibility, unless a door or window is open.

Rejecting these words, then, as mere useless tautology, the statute would read: "Every person who shall in the night-time forcibly break and enter, or without force enter," etc., which is exactly equivalent to saying: "Every person who shall in the night-time enter with or without force;" and as this makes the element of force wholly unessential, it is the same as saying: "Every person who shall in the nighttime enter." The truth is, the element of force had been so refined away by judicial construction, long before the enactment of the statute, that there was no sense in retaining it as a constituent of the crime. It had been decided that the lifting of a latch, the lowering of a window-sash or the gently pressing open of an unfastened door, was a forcible breaking. It stood a mere shadow of a former substance. in the law, serving only as the basis of subtle refinements and technical distinctions between acts that did not essentially differ in point of criminality. The intention of the legislature undoubtedly was simply to eliminate it from the definition of the offense. Why they should have resorted to such an awkward paraphrase of the simple language that would have expressed their intention without any ambiguity, is one of those things that are past finding out. It cannot be denied that our construction of the law does convict the legislature of extreme infelicity of expression, but to construe it as appellant does is to convict them of downright

Opinion of the Court-Beatty, J.

folly. For what would be the result? On an indictment for entering with force, proof of an entry without force would have to be excluded, and a fortiori on an indictment for entering without force, proof of entering with force would have to be excluded. Whence it would follow that in any case where it was reasonably doubtful on the proof, whether the entry was effected with or without force, the defendant could never be convicted upon any sort of indictment, although it might be established by the most indubitable proof that he did enter, and notwithstanding he is, in the eye of the law, equally guilty, and subject to the same penalty in either case. This result is a little too absurd to be attributed to the intention of any legislative body. It may be observed, in conclusion, that the whole section of the statute under consideration, seems to have been drawn with a reckless extravagance of words, and no argument can be founded on its roundabout mode of expression. Why, for instance, should it say, "with intent to commit murder, robbery, rape, mayhem, grand larceny, petit larceny, or any felony," instead of saying, "with intent to commit petit larceny, or any felony," which means exactly the same thing?

The indictment in this case is for breaking and entering. Whether the proof sustains the allegation of force or not, it is, in view of the foregoing construction of the statute, unnecessary to decide, and we do not so decide, although we think it does. It is at all events not disputed that it sustains the allegations of entering in the night-time with intent to commit larceny. This being premised, we will examine the defendant's exceptions seriatim.

On the trial of the case, the prosecution, after proving that certain articles, consisting of wearing apparel and bedclothes, which were in a room of a lodging-house in Winnemucca at nine o'clock at night, were missing in the morning, and that it was impossible for any one to have taken them without entering the room where they were, offered to prove by a policeman of the town that he had arrested the defendant between twelve and one o'clock the same night with these articles in his possession and under most suspi

Opinion of the Court-Beatty, J.

cious circumstances. The defendant objected to the testimony upon the ground that the corpus delicti had not been established, and it was not competent to introduce evidence tending to connect him with the commission of a crime which had never been committed. The objection was overruled, and properly so we think. It is a sufficient answer to the objection to say that the very evidence objected to tended to establish one ingredient of the corpus delicti. It was necessary to show that the entry was effected in the night-time, and proof that defendant had in his possession, outside of the house, between twelve and one o'clock, goods which were in the house at nine o'clock, and which could only have been obtained by entering the house, was proof of an entry in the night-time, and, taken in connection with the other proof, completely established the corpus delicti. It was then, of course, proper to show the suspicious circumstances connected with defendant's possession, for that tended to prove him guilty of the larceny; and as the larceny could only have been committed by means of a burglarious entry, it necessarily tended to convict him of the burglary.

The remarks of the court in overruling the objection were not uncalled for. They explained, in perfectly appropriate language, the grounds of his ruling, and this, if not necessary, was at least not improper. If courts contented themselves in ruling upon objections by saying simply, "I overrule your objection," or "I sustain the objection," it would often be impossible to conjecture the ground of the ruling, and it would lead to unnecessary repetitions of objections covered by the grounds of the first ruling. In order to save the court and counsel from thus acting at cross-purposes it is well for the court to explain its rulings, care being taken, in so doing, not to trench upon the province of the jury. It is not trenching upon the province of the jury to say that evidence has been given tending to establish a fact which it clearly does tend to establish, and this was, in effect, all that the judge said.

Instruction No. 4 given by the court is not erroneous on the defendant's own theory of the law. It does not instruct the jury that the defendant is guilty if he entered and stole,

Opinion of the Court--Beatty, J.

but that if he entered and stole it may be inferred that he entered with intent to steal, which as a substantive proposition is undoubtedly correct, and was proper to be given in the case.

Instruction No. 1, given at request of the state, laid down the law correctly, and there is no question that it was applicable. It did not instruct the jury that the defendant was guilty of burglary if he stole the goods, but that if he stole the goods that tended to prove that he committed the burglary, which it unquestionably did considered in connection with the evidence that they could not have been stolen without a burglarious entry of the house where they

were.

The modification of instruction No. 1, asked by defendant was proper. The court was asked to instruct the jury that the defendant could not be convicted unless he entered by force. The court appended a definition of force which was correct and pertinent. The fault of the instruction as given is that it was too favorable to the defendant in sustaining his construction of the statute.

Of the modifications of instructions 5 and 13 asked by defendant, it may be said that their only effect was to relieve the instructions of any possible ambiguity, and to make their meaning more certain. It was proper, too, in connection with instruction 13 asked by defendant, to remind the jury that he was not on trial for larceny, otherwise they might have inferred from its language that they could convict of larceny, a verdict which the indictment would not have supported.

Instructions 4, 6 and 7, asked by defendant, and refused, were all erroneous because based upon his construction of the statute; and even if they had not been erroneous the court would perhaps have been justified in refusing them for the reason that their substance had been given in other instructions.

Having reviewed all the points urged by the appellant and discovered no error on the part of the court below, its judgment is affirmed.