#### The State of Ohio *v.*Mason et al.

*Penalty for burglary*— Section *68SS, Revised Statutes*— Question *when dwelling-house is inhabited*— Burglary *of premises during temporary absence of family*— Criminal *law.*

Within the meaning of section 6835, Revised Statutes, which prescribes imprisonment for life as the punishment of the crime of burglariously entering an inhabited dwelling-house, a dwelling-house is inhabited when the family have gone for a vacation leaving servants in charge of the house, though when it is burglariously entered the servants may be temporarily absent upon an errand.

(No. 9475

Decided March 6, 1906.)

Error to the Circuit Court of Hamilton county.

Mason and Sewell were indicted under section 6835 of the Revised Statutes, as amended October 22, 1902, for forcibly and maliciously breaking and entering an inhabited dwelling-house, the property of Paul Walker, with intent the personal property of said Walker to steal and carry away. To the indictment they pleaded not guilty. On the trial no *66evidence was offered by the accused. That offered by *the*state showed that the owner of the property with his wife had gone on a summer trip to Europe, intending to return at the close of his vacation, leaving their furniture and all their other household goods and wearing apparel in the house, the whole in care of two servants who regularly spent their days and nights in the house but were temporarily absent therefrom at the time of the breaking and entering, having gone to spend something less than an hour in shopping. The presence of the accused in the house was discovered by a neighbor who gave information to the police who promptly surrounded the house. One of the accused attempted to escape by jumping from a window of the second story, but was at once arrested. The officers having procured a key from the servants upon their return, arrested the other within the dwelling. The contents of bureau drawers' and trunks were found upon the floor and valuables had been taken. These facts being conclusively established, counsel for .the accused requested the court to direct a verdict of acquittal. This was denied, and the court instructed the jury correctly, as is admitted, unless it erred in instructing them that an inhabited dwelling-house does not change its character because of such a temporary absence upon an errand of those who regularly occupy it. The jury returned a verdict of guilty of breaking and entering an inhabited dwelling-house. A motion for a new trial was overruled and the sentence appropriate to the verdict followed. In the circuit court the judgment of the court of common pleas was reversed for error in the charge with respect to the meaning of the phrase “an inhabited dwelling-house. ’ ’

*67
      *Messrs. Rulison, Morris, Sawyer & Minning,*prosecuting attorneys, for plaintiff in error.

The question involved in this case is the construction of the words “inhabited dwelling-house” and “uninhabited dwelling-house,” as found in section 6835, Revised Statutes, as amended May 2, 1902.

It must be conceded that the building alleged, by the indictment in this case, to have been broken and entered was a dwelling-house. But it is contended by the defendants in error that, by reason of the temporary absence of the two servants for household purposes, it was not an inhabited dwelling-house within the meaning of the act. We are therefore confronted with the question, “What did the legislature mean by an 'inhabited dwelling-house?’ ”

It is the claim of the State that the construction of the term “inhabited dwelling-house” by the circuit court, as meaning one in which some one is actually present at the time of the breaking and entry, is entirely too narrow and unreasonable, and goes much further than the language of the statute justifies. While it is true that criminal statutes must be strictly construed, it is also equally true that strict construction does not mean distortion; and it would seem, upon consideration of the judgment' of the court below, that such is the result of its interpretation of the terms.

The terms “inhabited dwelling-house” and “uninhabited dwelling-house” are not in any sense technical. Bishop on Statutory Crimes (3 ed.), sec. 101.

Before the passage of the-act under consideration there was no classification of dwelling-houses in Ohio. All buildings used by men as places of abode were regarded as dwelling-houses, the law being only *68concerned with their *use*as dwellings, irrespective of the purpose for which they were built. *Davis*v. *State,*38 Ohio St., 505.

But the last legislature, as was suggested by defendant in error'in the hearing below, realizing the danger to human life involved in the breaking and entering of dwelling-houses, .undertook, by the passage of the act in question, to discourage this particular crime by attaching to it a penalty of the most severe character. At the same time, the legislature doubtless realized that in the ordinary course of men’s affairs there are many circumstances under which a house may not have a living soul dwelling in it for long periods of time, and yet preserve its identity as a dwelling-house. Summer-houses and winter-houses, houses left entirely unoccupied for long periods of time while their owners are following the dictates of business or pleasure, are recognized by the law as dwelling-houses. *State*v. *Meerchouse,*34 Mo., 346; *Harrison*v. *State,*74 Ga.,*801; Com.*v. *Brown,*3 Rawle, 207; *State*v. *Dan,*18 Nev., 345; Wharton on Criminal Law, sec. 791; Bishop on Statutory Crimes (3 ed.), sec. 279.

For the extended periods during which such houses xemain unoccupied the crime of breaking and entering them ordinarily involves no more danger to human life than that of breaking and entering a storehouse or any other of the half-dozen or more buildings mentioned in the statute.

These considerations justly gave rise to the desire, on the part of the legislature, to devise some classification of dwelling-houses in which the penalty to be imposed would be fairly proportioned to the damage sought to be prevented. For this reason, and no other that can possibly be imagined, the legis*69lature was amply justified in classifying dwelling-houses into “inhabited” and “uninhabited,” and providing a different penalty for the breaking and entry of each.

In dividing dwelling-houses into these two classes it may be fairly assumed that the legislature intended to create a classification of some stability, and, at the same time, one which would fairly accomplish its main purpose of offering all reasonable protection to human life.

The fact that Ohio is unique in the use of the terms “inhabited dwelling-house” and “uninhabited dwelling-house” in its burglary statute deprives the State from presenting any authorities directly bearing upon their interpretation. So far as we are now aware, counsel for plaintiffs in error below cited but one burglary case in support of their contention. This was the case of *State*v. *Moon,*62 Kan., 801.

It is difficult to see how the comment of the Kansas court upon the definitely expressed intent of the Kansas legislature to protect only the actual occupant of a dwelling-house can be of any value in the case at bar, where the language of the Ohio statute is so far different.

These cases cited by plaintiff in error below, viz.: *Commonwealth*v. *Buzzell,*33 Mass., 160; *Woodford*v. *People,*62 N. Y., 117; *Lacy*v. *State,*15 Wis., 15; *People*v. *Jones,*2 Edm. (N. Y.), 86; are all good law, but the humane consideration of one legislature, having special regard for the safety of those whose lives are endangered by the commission of the crime of *arson,*can control and limit those of another in providing for the possible safety of those whose lives are endangered by the crime of *burglary,*it is difficult to see. If the crime in each instance *70was arson and the.language of the statutes was the same or similar, the cases might be in point, but with such widely different crimes and statutes, the decisions can be of no possible value.

It might be further said that arson and burglary, while both are crimes, are exceedingly different in their character; burglary is a crime of stealth, which can only be committed in the night season, when it is so dark that the face of a human being cannot be discerned at a reasonable distance. A man may easily enter his house without knowing that the perpetrators of the crime are there, and many a man has been killed for this misfortune; while arson, though stealthily committed, is a crime which, in its results, readily becomes apparent. It may be committed night or day, and in its perpetration only involves danger to the actual occupant of the dwelling-house. The perpetrator of the crime of arson slinks away from the scene of the crime after h’e has set fire to the building, while the burglar remains upon the scene after the breaking and entry to secure the fruits of his labor, and while so doing to avoid apprehension and its consequent punishment by means of murder if necessary.

However; without abandoning our contention as to the difference between the wrong and the reasonable remedy in burglary and arson, it is interesting to note the ruling of the court when practically the same question of interpretation that we have here was actually in issue. Section 4311, Revised Statutes of Georgia makes the willful and malicious burning of an *occupied*dwelling-house punishable with death. After some consideration we are unable to see any difference between the use of the term “occupied” and “inhabited,” other than that it *71might he said that the latter is the more general term. In the case of *Johnson*v. *State,*48 Ga., 116, the prosecuting witness left his home in the morning, returned the same evening, and found the house burned down; his wife left the house the same day, and there was no one in the house at the time it was burned. It was claimed by the defendant that this was not an *occupied*dwelling-house.

*Mr. Phineas S. Phillips*and *Mr. William Sander, Jr.,*for defendants in error. •

It is contended by the state of Ohio that the construction of the circuit court of section 6835, Revised Statutes, as amended May 2, 1902, afterwards in 1903, is not reasonable.

All the authorities have held, without an exception, that a *dioelling-house*is not a mere empty building, even though it may have been constructed and formerly used as a residence, but that it must be the home and the place of residence of some person or persons; the law being only concerned with their use as dwellings, irrespective of the purpose for which they were built. *Davis*v. *State,*38 Ohio St., 505.

In volume 2, Second American and English Encyclopedia of Law, page 926, tíre rule is laid down that is the rule not only in this country, but also in England. 2 Encyclopedia Laws of England, 208.

The question to determine, therefore, is the intention of the legislature of Ohio in dividing dwelling-houses into two classes, inhabited and uninhabited. To arrive at that intention we cannot take the mere naked words used in the statutes, but must consider, in connection therewith, the present statutes, the law as it had existed prior thereto, the constructions *72which had been placed upon it, and the defects, if any, which the legislature sought to remedy.

In view of the rule we have heretofore referred to, it is clear that an empty house, in which no one resides, would not be considered a dwelling-house, either inhabited or uninhabited; for while the courts have uniformly held that to constitute a structure a dwelling-house, it matters not whether there be a human being therein at the time of the commission of the offense of burglary, yet it is evident that when we speak of an *uninhabited dwelling-house,*we do not mean an *uninhabited house,*in which no one has resided and which is empty, for such a structure could in no sense be considered a dwelling-house of any class.

If the contention of counsel for plaintiff in error is correct; that a dwelling-house which one has left for a limited period, to-wit: for a few hours or a day or two, is an inhabited dwelling-house, within the meaning of the statute under consideration, it is evident that the legislature created no classification whatever, for the construction which the state seeks to put upon the crime of burglarizing an inhabited dwelling-house would be precisely the same as the construction which has heretofore been placed upon the crime of burglarizing a dwelling-house under our former statutes.

We think it clear that this was not the intention of the legislature. We think it clear that it was not the intention to punish more severely the crime of burglary irrespective of the fact as to whether human beings were in the structure at the time of the commission of the offense or not.

Our view of the enactment of section 6835, as amended in 1902 and 1903, is that the manifest inten*73tion of the legislature of Ohio was to mete out a punishment for the offense of burglary which would be commensurate to the gravity and enormity of the-crime.

In enacting this law and creating this classification, the legislature of Ohio was merely following a classification that had previously been made by nearly all of the important states of this country • and England, to-wit: Alabama, California, Georgia, Kansas, Massachusetts, Minnesota, Michigan, Missouri, North Carolina, Wisconsin, New York, as well as all of the English statutes.

Burglary in these states is divided into two general divisions. The first grade is where the offense-is committed while there is a human being in the dwelling-house at the time of the commission of the offense. The second where there is no one in the dwelling-house at the time. The first grade is in all cases punishable by extreme measures, and in the second by a much milder form of punishment. The reason for this difference is obvious, for in the first grade there is coupled with the offense against the *property*the much more serious crime of an offense-against the *person.*

All the decisions have recognized that *the danger to human life*is the single *controlling*point, and it is with ,a view to protecting it that the legislatures of the several states of our country have imposed the maximum penalty of imprisonment in such cases. *State*v. *Moon,*62 Kan., 808; *Commonwealth*v. *Buzzell,*33 Mass., 160; *Woodford*v. *People,*62 N. Y., 117; *Lacy*v. *State,*15 Wis., 15.

The precise question now presented to this court arose in the state of New York, and this entire question has been determined by the *74courts of that state. *People*v. *Butler,*16 Johnson (N. Y.), 203.

Is this not the identical case at bar? Did not the legislature of the state of Ohio intend to do exactly what the legislature of New York did, when it made the offense of burning an inhabited dwelling-house an offense punishable by death, while that of breaking an uninhabited dwelling-house is punishable in a much milder degree.

Construing this same statute (N. Y.) is the case of *People*v. *Jones,*2 Edmond’s Reports (N. Y.), 86.

Criminal statutes are to be strictly construed and yet under a most liberal construction no court would hold that conviction might be had for *what might have been the result*of the commission of the crime. *People*v. *Butler,*16 Johns. Rep., 203, above cited, has been approved and followed by all the decisions in New York since that time. The strongest case on this subject is the case of *People*v. *Fanshawe,*65 Hun (N. Y.), 77, decided in 1892.

We submit that in the case at bar there was absolutely no offense committed against the person; no one was in the house or about the house at the time of the breaking and entering by defendants in error nor at any time while they were within the house or on the premises, indeed, the evidence shows that defendants in error were apprehended, under arrest and on their way to the police station before the occupants of the house again entered it.

Shauck, C. J.

This is a proceeding in error under section 7306a of the Revised Statutes for the reversal of the judgment of the circuit court and the affirmance of that of the court of common pleas. *75
      *State*v. *Budd,*65 Ohio St., 1. It is not a proceeding under sections 7306 and 7308 to present to this court exceptions taken hy the prosecuting attorney to an adverse ruling of the trial court for the purpose of having the law determined to govern similar cases, in which counsel may be appointed to argue the case against the prosecuting attorney. It follows that although counsel for the accused appear here to vindicate the judgment of the circuit court they are in no sense attorneys for that court.

The pertinent provision of the section of the statute under which the defendants were charged is as follows: “Whoever in the night season maliciously and forcibly breaks and enters any inhabited dwelling-house with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury shall be imprisoned not more than thirty years nor less than ten years; and whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter, any uninhabited dwelling-house, or any kitchen, smoke-house, shop, office, storehouse, warehouse, malthouse, still-house, mill, pottery, factory, water-craft, school-house, church or meetinghouse, barn or stable, railroad car, car factory, station-house, hall or any other building, or attempts to break and enter any inhabited dwelling-house (houses) with intent to steal property of any value, or with intent to commit a .felony, shall be imprisoned in the penitentiary not more than fifteen years, nor less than five years. ’ ’

Counsel for the defendants present the view that the distinction which the statute makes between an inhabited dwelling-house and an uninhabited dwell*76ing-house, and the imposition of the graver penalty for burglariously entering a house of the former-description, is for the protection of human life, giving consideration to the liability to personal encounters between burglars and occupants who may be in the house when it is entered. No case, they say, can be within that purpose unless the persons-who inhabit the house are actually in it when it is burglariously entered. Since the statute contains-no technical words affecting the question, the purpose of the legislature can be ascertained only by regarding its words as used in their ordinary sense.. If we assume that counsel have stated that purpose' correctly, we must still recur to the terms of the' statute to ascertain what has been enacted for . its-accomplishment, that is, for the protection of human life. Did the legislature contemplate only those collisions which are likely to occur between burglars and persons who are within when they enter? Of did it also contemplate the collisions likely to occur when persons who have been absent from their homes return to find burglars already within? No-suggestion is made which can excuse us from considering the ordinary meaning of the words used by the legislature in defining the offense for which it has provided the graver penalty.

Counsel have diligently, and vainly, searched for like provisions in the statutes of other states.' But. the change in our own statute made by the amendment of 1902 deserves attention. Prior to that amendment, and for many years, the buildings which were the subject of a burglarious entering were, “any dwelling-house, kitchen, smoke-house, shop, office, storehouse, warehouse, malt-house, still-house, mill, pottery, factory, water-craft, 'School*77house, church or meeting-house, barn or stable, or railroad car, car factory, or station-house.” The change effected by the amendment is to divide dwelling-houses into the two classes of inhabited and uninhabited. To enter a dwelling-house of the former class the graver penalty is affixed, while, as to the penalty, the uninhabited dwelling-house is left in the same category of buildings as formerly. If the general assembly were legislating for the purpose of establishing a distinction upon the ground of the actual presence of persons in, or their absence from the building at ■ the time of entering, it is quite unaccountable that it omitted to make a similar provision as to the other buildings if they should be occupied when burglariously entered; for it is within common observation that in the night season persons are actually within churches and others of the buildings named in the statute. The cases cited by counsel for the defendants in which there has been a construction of statutes relating to dwelling-houses “in which there shall be at the time some human being” do not seem to advance their view. Indeed since the legislature of this state has rejected the words which so plainly bear the meaning for which they contend and has adopted those of a broader meaning, we are forced to conclude that it had a more comprehénsive purpose in view. Unless we substitute words rejected for words used we must regard our statute as comprehending within the graver offense a dwelling-house which, as was this, is in daily use by those who inhabit it although at the precise moment of the burglarious entering they may be temporarily absent on an errand incident to the duties of housekeeping. Conformably with the practice of this *78court the point decided is stated in the syllabus. The propriety of limiting judicial decisions to the requirements of cases is obvious, for it has been frequently illustrated. But misunderstanding and embarrassment are likely to ensue unless the limitation is because of the presence or absence of facts which are of legal significance. It seems to me that they are likely to ensue in the present case if our decision is so limited as to suggest a resort to time pieces and measuring devices to ascertain the duration or the distance of the absence from an inhabited dwelling-house of those who inhabit it. We agree that the words considered are usepl in their natural meaning, and that meaning is not doubtful. A dwelling-house is a building which by the mode of its construction or reconstruction is suitable for a habitation. An inhabited dwelling-house is such a house used as a habitation. The ordinary use of a habitation embraces the protection and shelter of household goods and wearing apparel whether the inhabitants are present or absent. The proprietor of this dwelling-house was a school teacher. During the school year he inhabited it with his wife. When they went away to return at the close of his vacation, leaving their household goods and deities within its protecting walls and shades, they did not cease to inhabit it. The protection of homes is a subject worthy of legislative attention and the language of this act indicates that such was its purpose. If this view is correct, it is of no legal significance whatever that servants were left in charge of the house during the absence of the proprietor and his wife.

*Judgment of the circuit court reversed and that of the common pleas affirmed.*

*79Price, Crew, Summers, Spear and Davis, JJ., concur.

Spear, J.

I am in accord with the judgment, and with the preceding opinion save the suggestion in the last paragraph that the dwelling would have been an “inhabited dwelling” within the meaning of the statute, even though servants had not been left in charge of the house during the absence of the proprietor and his wife. Many definitions of the word “inhabit” are given by lexicographers. As applied to this situation, it seems to me that it is the equivalent of to remain, dwell, or to abide within, as distinguished from to depart from. Adopting this definition an inhabited dwelling is one which is occupied and wherein usual processes of living and housekeeping are going on as contrasted with a dwelling, however furnished, from which the owners have departed for an indefinite stay, leaving no one in charge and in which no housekeeping is at the time being conducted. In my judgment the presence of the serving women, as shown by the record, and the occupancy by them of the house as the place where they at the time dwelt, saves the case for the state.