#### Conrad, *alias*Castor, *v.*The State of Ohio.

*Killing during perpetration of a crime*— Is *murder in first degree, when■*— -Penal *statutes strictly construed*— Section *6808, Revised Statutes*— When *tzvo together commit burglary and one kills an arresting policeman*— Both *burglars are equally guilty*— In*terpretation of stahites*— Res *gestae*— Criminal *law.*

1. The rule as to strict construction of.penal statutes does not require the courts to go to the extent of defeating the purpose of the statute by a severely technical application of the rule.

2. Where one starts to carry out the purpose to commit a rape, arson, robbery or burglary, and kills another under circumstances so closely connected with the crime which he has undertaken as to be a part of the *res gestae*thereof, he is guilty of murder in the first degree, within the meaning of Section 6808 of the Revised Statutes, whether the crime which he originally undertook has been technically completed or not.

3. When two, in furtherance of a common design, enter upon, the perpetration of a burglary armed and prepared to kill if opposed, and while so engaged are discovered, and in the effort to escape one of the burglars kills one who is trying to arrest him, both burglars are equally guilty of the homicide, although one of them was not armed with a deadly weapon, and although such killing was not part of the prearranged plan.

4. When under such circumstances one of the burglars, at a short distance from the building and on another lot, shot and killed a police officer, who had commanded him to halt, the court properly found that the killing was in the perpetration of the burglary, and that it was murder in the first degree.

(No. 10048

Decided October 16, 1906.)

Error to the Circuit Court of Franklin County.

The plaintiff in error, Frank Conrad, *alias*Frank Castor, was indicted with one John Doe, whose real name was unknown, and'charged with having on or about the seventh day of June, 1905, committed the crime of burglary in and upon a certain dwelling-house in the city of Columbus, and that while engaged in the perpetration of the *53burglary, they did unlawfully and purposely shoot Daniel E. Davis, inflicting upon him a • mortal wound of which he then and there died. The essential facts relating to the questions before this court are as follows: The dwelling-house which was broken into was, at the time of the burglary, unoccupied, the family being temporarily absent. Before leaving, the house had been wired with a burglar alarm. When the burglars broke and entered the building through a window, an alarm was sounded in the office of the American District Telegraph Company, so that within a féw minutes after the burglars had entered the dwelling, the place was surrounded by the police, and an agent of the telegraph company, accompanied by an officer, entered the house and turned on the lights. The burglars, discovering the light in the house, ran up to the attic and escaped through an attic window to the roof of the kitchen in the rear, and thence jumped to the ground. . Almost immediately afterwards, the voice of the deceased, who was a detective officer, was heard crying out “Halt.” This was followed by the report of a revolver, and, immediately following this report, two other shots which by the different sound were judged to be by a different revolver. The plaintiff in error was seen by one of the officers to escape over the fence, in the rear of the lot where the body of the deceased was afterwards found. He was pursued and caught by the officer who saw him climb the fence, and taken back to the premises from which he had escaped. The body of the deceased was found about twenty-five or thirty feet from the house which had been entered by the burglars, and upon a vacant lot adjoining the *54lot on which the dwelling house was situated. When the body of Officer Davis was found, his own' revolver was in his hand, with one cartridge exploded. There was found beside him another revolver of different make, and different caliber corresponding to the bullets found in the body of the deceased, and two exploded shells were found in this revolver. The revolver fitted into a holster which .was found in the left hip pocket of the plaintiff in error when he was arrested. Both the revolver and the holster were admitted by the plaintiff in error, who testified in his own behalf, as belonging to him, and that he had them with him at the Chapman residence on the night of the burglary, but he denied that he fired the shots from the revolver, and said that he had given his revolver to his companion at the time they entered the house. He also denied that he escaped by way of the vacant lot in which the body of the deceased was found. He denied that there was any arrangement or intention to kill anybody.

The man who was indicted as John Doe was said by Castor to be one Jack Reed, and that he had known him ever since the .plaintiff in error escaped from prison at Jackson, Michigan. Reed has never been found.

When arraigned upon the indictment, the plaintiff in error first pleaded not guilty. Afterwards, he withdrew that plea, by and with the advice and consent of his attorneys, and, being cautioned by the court, he pleaded guilty. • The court thereupon proceeded to hear testimony for the purpose of determining the degree of the crime, and subsequently adjudged that- Castor was guilty of murder in the first degree. A petition in error *55was filed in the circuit court and the judgment of the court of common pleas was affirmed. Plaintiff in error now prosecutes proceedings in error in this court to reverse the judgments of the circuit court and of the court of common pleas.

*Mr. Ulric Sloane*and *Mr. C. M. Rogers,*for plaintiff in error.

This indictment charges, it is true, murder in the first degree, but it charges murder in the first degree of which the constituent element is, aside from the physical fact, that it was done while in the perpetration of a burglary. We state unqualifiedly, in face of the facts shown of record, that the burglary had been abandoned; that the burglars had left the house; that the killing was done, if at all, in resistance to an officer who attempted to prevent an escape; that it is shocking to common sense to say that it was the killing in the perpetration of a burglary, and that to say so, and to convict and order a man to be hung upon such a statement of facts, is simply conviction by construction, and stretching the law of proximate cause even to an extent that the courts of this state or other states have never extended even to civil liability upon the part of corporations or individuals.

While there are authorities to the contrary, we would be willing to admit that if a larceny had been committed as the result of the burglary, and that the burglars were asporting the stolen property, and an attempt had been made to arrest them, and the killing had been done under such a state of facts, it would be killing in the perpetra*56tion of a burglary, for, while an accomplished larceny is not necessary to establish a burglary, the intent to steal being alone necessary, yet if, as a result of the burglary, larceny is in fact committed and the asportation of the property is going-on at the time of the 'attempted arrest, and homicide is committed, then it remains so much a part of the *res gestae,*and so much a part of the original offense as to be in law “while in the perpetration of a burglary.” Yet one of the most respectable' Supreme Courts in our land, that of Illinois, has held in the case of *Lamb*v. *People,*96 Ill., 73, that even when that is the case, that the one who has left after the commission of the burglary, but during the asportation, is not responsible for the killing of officers who attempted to arrest the others while in asportation of the stolen property.

It can not be disputed, as a matter of logic or common sense, that to constitute murder in the perpetration of a burglary, that some part of the killing must co-exist and be concurrent with some part of the perpetration of the burglary; for if the burglary is already perpetrated, and thereafter the burglar kills another, the killing is not in the perpetration of the burglary. In other words, there must be such a legal relation between the burglary and the killing, that it must be said that the killing- occurred by reason and as a part of the burglary. It is not enough that the defendant killed Davis; nor that the killing occurred soon after the burglary was committed, or while in an attempt to escape arrest for the burglary. But in order to render the killing murder, as charged in the indictment, at the time the homicide was *57committed, it is requisite that it be shown by the state that the defendant was at the time engaged in the perpetration of a burglary; so that the killing occurred by reason and as a part of the burglary, or before the burglary was at an end; so that the burglary had a legal relation to the killing and was concurrent with, in part at least, and part of, the killing in an actual and material sense. *Bissot*v. *State,*53 Ind., 408.

The principle that there must be such a legal relation between the burglary and the killing, that the killing occurred by reason of and as a part of the burglary, is fully established in *Hoffman*v. *State,*88 Wis., 166, where defendant was convicted of murder while engaged in the commission of a felony. *State*v. *Brown,*7 Ore., 186; *People*v. *Johnson,*110 N. Y., 134; *Hedrick*v. *State,*40 Tex. Crim., 532.

The words of the statute “whoever kills in perpetrating any burglary” must be construed strictly in favor of the accused, in accordance with the rules of construction of criminal statutes, and not receive a liberal construction as against the prisoner.

Again, every crime should be certainly and affirmatively limited in its construction to the words actually used. Otherwise an act might be construed into a crime, and the life or liberty of a citizen jeopardized by enlarging the meaning of the words used beyond the plain and definite letter of the statute. Bishop on Criminal Law. (2d Ed.), Sections 114 and 115.

Keeping the above rules in view, if the perpetration of the crime of burglary, where nothing has been taken, is not at an end when the culprit *58leaves the house, then, we submit, there is no definite or fixed time when such burglary comes to an end. The termination of. the burglary would become an uncertain thing, having no well-defined limitations, and may, like Tennyson’s brook, “go on forever.” Can the courts say if the burglary does not end on leaving the house, that it ends when the culprit leaves the premises, or when he has eluded his immediate pursuers, or, if he has no immediate pursuers, when he has evaded the first pursuer, or the second, or third, however remote in time or space such pursuit may have occurred?

The primary object of the statute rendering a person guilty of murder in the first degree, who kills another in the perpetration of a burglary, is doubtless to afford greater protection to the immediate inmates of any dwelling, etc., burglarized, and to make the proof of the perpetration of the burglary a substitute for deliberation and premeditation, which might otherwise never be capable of proof in cases of burglary and the other cognate crimes. It was never intended to cover a case where the victim of the killing- sought to arrest the slayer after the completion of the burglary, and the act of the victim in attempting the arrest intervened between the killing and the perpetration of the burglary.

The case of *Loveland*v. *State,*70 Ohio St., 514 (unreported), is directly in line with the principle which we have been contending for in the case at bar, for two reasons:

First. That the defendants were still in the house searching for plunder, the intent to rob still continuing, and that the original conspiracy was *59robbery, which had for its concomitant, force to the person.

Second. That it was not at an end until they left the house with their plunder.

And we contend that the opinion in the Love-land case does not support the contention of the’ state in the case at bar, but sustains our contention.

*Griffin*v. *Benevolent Association,*20 Neb., 620, presents almost the exact question.

There is a case of somewhat similar character, being the case of *Prudential Insurance Company*v. *Haley, Admr.,*91 Ill. App., 363, afterwards affirmed, 189 Ill., 317. But the court will observe, when it comes to look at that case, that the language in the policy was the loss of life “in consequence of his own criminal action,” being very different language from the words “while in the violation of the law” or “while perpetrating a burglary.”

*Messrs. Karl T. Webber, Robert W. McCoy, Wilbur E. King*and *Reed H. Game,*prosecuting attorneys, for defendant in error.

If Davis were killed by one of these defendants-in pursuance of the common' design to commit the robbery, then the other is equally guilty whether or not that killing was done with his knowledge or consent.

It is claimed by counsel for plaintiff in error that there was no agreement between the plaintiff in error, Conrad, and his said co-defendant to kill, and that, under the circumstances of the case, the killing was not the natural and probable conse*60quence of the conspiracy to commit the burglary, and was not in furtherance of the conspiracy.

It is claimed that defendants went to said house without burglar tools; that while they had a pistol, that it was not loaded until after they arrived at the house; that the pistol was loaded by said co-defendant, and that Conrad was not responsible for its being loaded, and did not agree to or encourage or aid in so doing; that the house was dark, the blinds closed, and that the house showed other evidence of then being uninhabited, and that this establishes the fact that Conrad did not contemplate killing in the conspiracy to commit burglary. 1 McClain on Crim. Law, Sections 195, 196 and 197.

The leading case in Ohio upon this subject is *Stephens*v. *State,*42 Ohio St., 150. The Supreme Court in the opinion in this case quoted Section 6808, Revised Statutes, defining the class of murder committed in the perpetration of a robbery. And also Section 6804, Revised Statutes, which provides that, “Whoever aids, abets or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.”

The same principle of law was applied in the case of *State*v. *Loveland,*70 Ohio St., 514, unreported. In that case the facts were that at the time of the killing Loveland was some distance away from the house, and in a buggy in the highway, and had not conspired to kill any person, but had conspired to rob, and his part of the plan to rob was to stay outside and watch, and the killing was done by one of the associates in the house, and after all the money obtained had *61been taken from the deceased. I McClain’s Crim. Law, Section 195.

It is not necessary to cite further authorities on this question. The rule laid down in *Stephens*v. *State, supra,*is the law in Ohio, and such is held to be a universal principle of law throughout the land.

The evidence sufficiently establishes the fact that this plaintiff in error, with another, perpetrated said burglary, 'and, in doing so, he carried with him a deadly weapon, and that it was loaded with powder and balls.

The case of *Jones*v. *State,*decided by the Circuit Court of Wood County at the April Term, 1897, 14 C. C., p. 35, is so very much in point here, and, as we see it, is so much within the facts and circumstances surrounding this case, and inasmuch as it has gone unchallenged for these years, we think may fairly be accepted as the law upon this statement of facts.

Every crime which has its inception in the crime of larceny or such an offense against property, shorn of all technical legal phraseology, may, we think, fairly be said to consist of three purposes. That is, that the accused must have had im his mind at the time the act was committed, three purposes: First, the purpose to come at the property or a determination to reach the place where the property might have been obtained; second, the purpose to obtain the property or the determination to appropriate it to his own use; third, the determination to steal, take and carry away, or to escape from the place where the property was obtained. This means that there is one main.purpose or transaction in which are included the pur*62poses to get at the property, to obtain the property and to escape.

In this case the main transaction was the burglary. And the evidence discloses- first the purpose to break and enter in the night season the house of Mr. Chapman, or the purpose to come at whatever property there might have been located in that house.

Second. The evidence shows that the purpose of that breaking and entering was With the intent to steal, take and carry away the property of value in the house, for in the short time this plaintiff in error and his associate were in the house they made an attempt to obtain some property by opening the drawers of a desk or dresser.

Third. The evidence shows an attempt to escape from the place where the property was sought to be obtained. These three acts of the defendants, together constitute the transaction which they had undertaken that night. Each of these acts • represents a different stage of the process of the main transaction, and it is our contention that all things done within the process of any one of these acts were done with the *res gestae*of the main transaction or in the perpetration of the burglary.

It will not do to say that the purpose to escape from the place where the property is sought to be obtained is merely incidental to the crime of burglary; that the purpose to escape is separate and independent of the purpose to break and enter and steal. If the court were to take this view of the question, then it would appear that a person who breaks and enters to steal may abandon his purpose' or be driven from his purpose before he *63has had the time to carry it out and he then becomes a sort of tenant at will or sufferance to remain in the premises as long as he desires, or if guilty of any crime it could be nothing greater than trespass; or until he has been driven out by the owner, a most absurd proposition.

Why should men arm themselves as a part of the preparation for committing a burglary? Surely not for the purpose of getting into the house. This weapon was a part of the means provided for the escape of these men from the building, and the escape was a part of the main transaction and part of the burglary. The getting out of the house after the breaking and entering in the night season is as much a part of the main purpose to commit the offense of burglary as the entering. They are both included in the main purpose to break, enter, steal and carry away.

This court is familiar with the rule that has been established and declared in *Stephens*v. *State,*42 Ohio St., 150. That rule is not only the law of this state, but it is the law of the land.

Can it be said of robbery that having taken possession of the property of another from that' other’s person by force that the robbery is at an end ? Is there not in the crime of robbery the element of asportation? Does not this crime contemplate the escape of the accused from the place where his crime is committed? If after having the property in his possession his flight or attempt to escape is interrupted by the dwner of the property and the owner is killed, must it be said, as is contended in this case,' that the homicide was not committed while perpetrating the crime of robbery? It seems to us that the interposition of such a technicality *64destroys every reason of the statute. The purpose of the statute is to afford greater protection to the owner of the premises or the property, while such a construction as this leaves every owner of the property at the mercy of every criminal,' and reduces a crime of homicide committed under such circumstances as above stated to merely manslaughter, if indeed the defendant would not go acquitted on the ground of self-defense.

But counsel for plaintiff in error contend that the time which elapsed between the time this plaintiff in error was arrested and the time when Officer Davis’ body was found and the distance which that body was found from the house of Chapman’s residence, should be considered in determining whether the homicide was committed with the *res gestae*of the burglary.

There is no fixed time; there is no fixed distance by which the court can determine when an act is within the *res gestae*of the main act, but each case must depend upon its own-peculiar facts and circumstances. Bishop’s New Criminal Law (8th Ed.), Section 641; McClain’s Criminal Law, Section 195.

This doctrine the court applied in the case of *Loveland*v. *State, supra; Dolan*v. *People,*64 N. Y., 497; *People*v. *Vasquez,*49 Cal., 560.

The concise statement of this doctrine will be found in Vol. 21, Am. & Eng. Ency. Law, 149; *Bissot*v. *State,*53 Ind., 408; *Hedrick*v. *State,*40 Tex. Crim., 532.

The case of *Bissot*v. *State*is worthy of the court’s attention for the reason that the contention there was the same as made here that the *65homicide was not committed in the perpetration of a burglary.

Asportation is only another name for escape. Escape is the most significant word of the. two. If there was no attempt to escape there could not be any asportation. The carrying away of property follows the attempt to escape, and the technical word asportation is used to include the escape with property. But either only shows that, escape from the premises is an element of the crime. So we can see no difference in the application of the rule to either of the propositions stated by counsel. If the second proposition will sustain the application of the rule, most assuredly the first will also.

Davis, J.

It was charged in the indictment that the plaintiff in error broke into a dwelling-house at night with intent to take and carry away personal property which was in the dwelling; and that while in the perpetration of such burglary, he, the plaintiff in error, shot and killed one Daniel E. Davis. The plaintiff in error, whose real name is Castor, when first arraigned on the indictment pleaded not guilty; but several weeks later, after first being cautioned by the court, and with the consent and advice of his counsel, • withdrew his plea of not guilty and pleaded guilty as charged in the indictment. Thereupon the court proceeded, as required by the statute, to hear testimony to determine the degree of the crime, at the conclusion of which the court found that the degree of the crime to which Castor had pleaded guilty is murder in the first degree, and gave sentence accordingly. This judgment was af*66firmed by the circuit court, and Castor now prosecutes this proceeding in error to reverse the judgments of the circuit court and the court of common pleas.

Castor has had a fair trial for his life, unless there, is error in the conclusion of law reached by the courts below, that upon the facts of the case he killed the deceased “in perpetrating or attempting to perpetrate” a burglary, within the meaning of Section 6808, Revised Statutes.

His plea of guilty conclusively establishes every essential fact in the case against him, and leaves open only the question as to the degree of the crime. Whether he fired the fatal shot or not, he was guilty of the crime, because he and his confederate had engaged in a common purpose, that of breaking into the house and carrying away the property of the owner, and necessarily they seem to have contemplated the exigency of opposition or attempted arrest when they took with them the revolver which was afterwards found beside deceased, for the revolver would be of no use in breaking into the house and would only prove serviceable in the exigency named. See *Stephens*v. State, 42 Ohio St., 150, 153.

His counsel, nevertheless, argue that as matter of fact and of law the killing was not “in the perpetration of a burglary”; and they claim that inasmuch as the indictment charges murder in the first degree, and murder in the first degree of one kind only, that of purposely taking human life, while in the perpetration of a burglary,- they are entitled to have “not only a reversal of the judgments of the courts below, but a decree finally and completely discharging the defendant under *67this indictment.” If this contention of counsel should prevail it would defeat the purpose of the statute and destroy its efficacy, as is clearly demonstrated by the Supreme Court of Indiana in the extended quotation which we here make:

“In this case, that the burglary and homicide were both committed, there can be no reasonable doubt; but it is insisted that the homicide was not committed ‘in the perpetration’ of the burglary; and, therefore, being unconnected with the burglary, the facts do not warrant a conviction in a higher degree than manslaughter, if, indeed, they do not excuse the prisoner entirely; that the burglary was consummated as soon as the burglarious entry was 'made with the felonious intent as charged; and that, as the homicide was committed after the entry, it was not, therefore, committed ‘in the perpetration’ of the burglary. If this construction were to be given to the statute, it would be quite impracticable to ever convict for a murder committed in the perpetration of any of the felonies mentioned in this section. The intention of the Legislature, in enacting the section, was, doubtless, to class certain homicides in the highest degree of murder without containing the ingredient of premeditation, malice or intention, which otherwise could not possibly be of a higher degree than manslaughter, and, in many cases, might not amount to criminal homicide at all. In this case,' take away the elements of burglary which surround it, and the prisoner might plausibly contend that he had committed nothing more than excusable homicide; for it appears that the deceased shot at him first, and thus put his life in immediate jeopardy. It could not be higher than man*68slaughter, at most; and in such cases it might be accidental, and then, if held not to be ‘in the perpetration’ of the burglary, would be excusable. If the charge was murder committed ‘in the perpetration’ of a robbery, as soon as the accused had forcibly and feloniously, or by violence and putting in fear, taken from the person of another any article of value, the robbery would be consummated; yet, if immediately afterwards, in the struggle to release himself and escape, he had killed his victim, the degree of the homicide, unconnected with the robbery, would be no higher than manslaughter. So, if the charge was murder committed ‘in the perpetration’ of arson, as soon as the criminal had willfully and maliciously set fire to a dwelling house, the arson would be accomplished, and he could flee; yet it might be that some human being was in the building at the time, and hours afterwards was consumed in the flames. In such a case, the homicide, if held not to be committed ‘in the perpetration’ of the arson, would be merely manslaughter, being- a homicide perpetrated in the commission of an unlawful act, without malice,, express or implied, although the felon had committed two crimes of the most shocking character. True, the homicide might be murder in such a state of facts, when it was committed with premeditation, malice, and intention, and the arson was merely the means of accomplishing the crime. And if the charge was murder committed ‘in the perpetration’ of a rape, as soon as the felon had unlawfully and forcibly, and against the consent of the woman, effected sexual penetration, the crime by statute would be complete; yet, if he still persisted in his nefarious object, until he had *69accomplished the natural purpose of the sexual act, and in such persistence killed his victim, if it was held not to be ‘in the perpetration’ of .the rape, he would be guilty of only the lowest degree of homicide, although he had committed the foulest and also highest crime known against nature.

• “Although we must construe criminal statutes strictly, adhere closely to the definition of crimes, and interpret technical words according to their fixed meaning, yet we can not give to the section under consideration the construction contended for by the appellant. In our opinion, where the homicide is committed within the *res gestae*of the felony charged, it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute; and, being convinced in this case that the burglary charged was committed, and that the homicide was committed within the *res gestae*of the burglary, we must hold that it was committed in the perpetration of the burglary, within the true intent and fair meaning of the statute. It seems to us that such a construction is safe to the state and the citizen, and the only one by which the intention of the Legislature can be practically carried into effect. And we think, according to this view, that the evidence in this case fairly warrants the conclusion, beyond a reasonable doubt, that the homicide alleged was committed ‘in the perpetration’ of the burglary, as charged in the indictment.” *Bissot*v. *State,*53 Ind., 408.

The rule as to the strict construction of penal statutes does not require us to go so far as to defeat the purpose of the statute by a technical application of the rule. *United States*v. *Hart-*
      *70
      *well,*73 U. S., 385, 395, 396; *State*v. *Brown,*7 Ore., 186, 209; *Bissot*v. *State, supra.*

In substance, the argument in this case is that the perpetration of the burglary was complete when the house was entered, or at least while the burglars were within the house, and that as they carried nothing away in their flight the crime of burglary was complete when they left the house. The body of Officer Davis was found twenty-five or thirty feet from the house and on another lot. Therefore, it is argued, the killing was not in the perpetration of a burglary.

We will pause here to emphasize a distinction which will be apparent to any one on reflection. It is the distinction between the definition of a burglary and a statement of the circumstances which may have occurred *“in the*perpetration” of a burglary. The former is invariable. The latter varies with each case. The definition of a burglary is the breaking into a house in the night season, with intent to commit a felony; and if a house be so entered it is a burglary whether the felony be executed or not, and regardless of the kind of felony intended, or the manner of its execution, or the manner in which the felony may be frustrated, or the value of property taken, or any other circumstance which is not intrinsic. On the other hand, while the circumstances which differentiate the crime may be a small part of the transaction, and must always be the same, the things which occur “in the perpetration” of a crime change with every case, and may be numerous.

For example, when a burglary has been planned, in order to carry it out, or, in other words, to perpetrate it, the burglar must go to *71the building, he must break and enter it; he may effect his purpose or attempt it, and he must come away; for the very nature of the transaction implies that the burglar will not remain in the building. An infinite variety of things may happen in carrying out the crime. The perpetrator may kill a man while going to or trying to enter the building, he may kill a man after he has broken and entered the house, and he may kill a man while trying to escape, either in the house or outside of it. Can any sound reason be suggested why the killing in any one of these instances might be in the perpetration of or attempt to perpetrate a burglary, and not so in the others? The crime of murder in the first degree as defined by the statute (Section 6808, Revised Statutes) certainly can not by any reasonable construction be confined to the moment of breaking and entering the house, the crucial point of the definition of burglary; and it should be noted here again that it is not burglary which we are to define in this case, but murder in the first degree.

Let us suppose a case. Two confederates intending to break and enter a dwelling for a felonious purpose are met by the owner at the door or window which they are forcing and they kill him. Would anybody question that such a killing was in the perpetration, or attempt to perpetrate, a burglary? Surely not. Then let us go farther back in the order of time. Suppose that while these confederates are watching the house and waiting for the opportune time, they see the owner of the dwelling come out with a lantern and go across the road to his barn, and they there set upon him and inflict injuries from which he dies, but they *72take no money or property. They afterwards go across the road towards the house, and, getting inside the yard, are frightened by somebody approaching and hurry away. Would that be murder in an attempt to commit *a*burglary? It was argued that it was not; but the Supreme Court of Pennsylvania held that it was. *Commonwealth*v. *Eagan,*190 Pa. St., 10.

Suppose another case. The confederates so far succeed as- to break and enter the building. A technical burglary has been completed; but after-wards and while yet in the building they shoot and kill somebody. Is that a killing “in the perpetration” of a burglary within the meaning of the statute defining murder in the first degree? It was vigorously contended in the Court of Appeals of New York and also in the Supreme Court of Indiana, that such a killing is not murder in the first degree, but a killing after the crime of burglary had been completed. Both courts hold that the crime in such case is murder in the first degree, notwithstanding that the killing and the breaking and entering are not coincident. *Dolan*v. *People,*64 N. Y., 485; *Bissot v. State,*53 Ind., 408.

Now, if the taking of life before reaching the building, and also after breaking and entering the building and before leaving it, is a taking of life in the perpetration, or attempt to perpetrate, a burglary, at what point after the breaking and entering is the line of distinction to be drawn? At what point can it be drawn, short of the absolute completion or abandonment of the- whole enterprise? It seems to us that logically there can be no such intermediate point; and we know of *73no case which holds otherwise. The case of *Lamb*v. *People,*96 Ill., 73, cited by counsel for plaintiff in error is not pertinent here. There the burglars got away with the plunder. They were in undisturbed possession of the goods. Lamb left the party and some time thereafter the others were detected in unloading the goods at a pawnbroker’s. Then the shooting occurred.

Take another case. Three men entered a pawnshop, locked the door behind them, beat the proprietor into insensibility, took from the safe certain articles of value and escaped through back windows. They were pursued by a constable who chased them for the distance of four blocks and across two streets. They then turned and fired at the constable and a pistol ball missing him struck a tree and glanced off, killing a boy. The men were indicted for murder while engaged in committing a robbery. A conviction of murder in the first degree resulted as to one of the defendants; and the Supreme Court, in *State*v. *Brown,*7 Ore., 186, said:

' “The defendant admits that he committed a robbery in the pawnshop of O’Shea, but insists that the crime was completed when he and his co-defendants forcibly seized the property described ■ in the indictment, and, being completed, he denies that the killing of Joseph was done in the commission of the robbery. We do not assent to the correctness of this conclusion. * * * When a person takes with force and violence the goods of another from his person or presence and against his will, he has committed robbery * * * but it does riot necessarily complete the crime. It constitutes robbery so far as to render the per*74petrator■ liable to conviction for it; but the *act of robbery itself may be prolonged beyond the time when that liability is*fixed: When Brown and his co-defendants took the property by force * * * they committed the crime of robbery so far as to render themselves liable to punishment for it, but the robbery in contemplation of law was not completed until the taking and carrying away was ended. * * * And while anything remains to be done by the robbers to secure complete control over the property taken, the robbery is incomplete. The act of taking and carrying away in the case of Brown and his co-defendants commenced when the seizure was made in the pawnshop of O’Shea, and continued until they had *unmolested dominion*over the property which they had taken. When they first acquired that control .the robbery was ended and not before” (pp. 208, 209).

Again, in California several conspired to perpetrate a robbery. They went to the place armed with pistols and rifles. Two of the party entered the store, and, with drawn pistols, made those in the room lie down and be tied. The robbery was then committed"; but while it was being committed one of the robbers, Vasquez, was watching outside. Seeing two men standing in the door of a stable back of the store, Vasquez fired upon them with his rifle and one of the men was thereby shot and killed. Vasquez claimed that it was agreed that no one should be killed or hurt and denied that he fired the shot that killed the deceased. He was found guilty of murder in the first degree and sentenced to be hung. He appealed from the judgment and from an order *75denying a new trial. The trial court charged the jury as follows: “It is no defense to a party .associated with others in, and engaged in a robbery, that he did not intend or propose to take life in its perpetration, or that he forbade his associates to kill, or that he disapproved or regretted that any person was thus slain by his associates. If the homicide in question was committed by one of his associates engaged in the robbery, in furtherance of their common purpose to rob, he is as accountable as though his own hand had intentionally given the fatal blow, and is guilty of murder in the first degree.” The Supreme Court said in regard to this charge: “The instruction is in entire accordance with the provision of the statute, which declares that murder which is committed in the perpetration of, or attempt to perpetrate robbery, is murder in the first degree; and no argument is required to sustain it, as a clear and correct statement of the law on that point”; and the judgment was affirmed *(People*v. *Vasquez,*49 Cal., 560). It should be noted in this case that neither Va.squez nor the deceased, at the time of the shooting, was in the building in which the robbery took place; and that the shooting took place after the store had been entered and the people therein had been put in fear and had their hands tied behind them. The entire contents of the store were from that moment completely within the control of the robbers; and the technical definition of a robbery was fulfilled. But the murder was committed after that and outside of the building while the principals in the robbery were within.

*76Finally, as we regard it, the principle which is involyed here was decided in the case of *Loveland*v. State, noted in 70 Ohio St., 514, but unreported. Loveland, with others, entered into a design to rob one George Geyer. They went to Geyer’s house, Loveland remaining Outside in a buggy and about fifty yards from the house, his confederates going into the house and accomplishing the robbery. Afterwards, and before the robbers left the house, an altercation ensued and Geyer was shot and killed.. The indictment charged murder in the perpetration of a robbery. Loveland was convicted of murder in the first degree, and the judgment was affirmed by the circuit court; and by petition in error in this court, among other errors, error in the charge of the court was assigned. The following are the paragraphs of the charge to the jury which are pertinent to’ this case:

“If, in this case, the other elements of crime being present, the defendant, together with others, conspired together to commit a robbery, and the others entered the residence of the deceased, George Geyer, in carrying out a common purpose to rob George Geyer, and the defendant stood guard outside, and in the course of the perpetration of the robbery, either one of them shot and killed George Geyer, the defendant would be equally guilty with the one firing the shot, if such use of the weapon and such killing might reasonably have been contemplated as a natural and probable consequence of the common purpose to commit the crime of robbery, whether such killing was part of the prearranged plan before they went to the house of George Geyer or not, *77and even if the defendant himself carried no deadly weapon.

. “If the evidence in this case should show or satisfy you that the said George Geyer was killed after the money was obtained from him, I charge you, as a matter of law, that if the said George Geyer was killed immediately after such money was obtained and while the conspirators or any of them were still in the immediate presence of the said George Geyer, and before they had withdrawn from the house, or from the immediate presence of the said George Geyer, and while said conspirators or any of them were still insisting and demanding that the deceased produce more money, then, as a matter of law, the killing was done in the perpetration of the robbery, because it was within the *res gestae*of the crime.”

This court found no error in the record, affirmed the judgments of the courts below, and Loveland was executed. All the judges sitting in the case concurred in the judgment of affirmance, except Crew, J. Summers, J., having sat in the case in the circuit court, did not sit in'this court. The only difference between that case and this is that in the Loveland case the shooting was in the house. On the theory of counsel for plaintiff in error, if the murder had occurred on the front doorstep, when the robbers were leaving, it would not be murder in the first degree. But we confess that we are unable to understand why the line of distinction should be drawn at the threshold of the house, if the shooting within the house, after the robbery was technically complete is murder in the first degree.

*78Thus it appears that in all these cases which we have reviewed, cases of killing before, during and after the technical perfection of the collateral crime, the courts practically concur in the view expressed by the Court of Appeals of New York, that, “If, while there engaged in securing his plunder, or *in any of the acts immediately connected with his crime,*he kills any one resisting him, he is guilty of murder under the statute” *(Dolan*v. *People,*supra); and by the Supreme Court of Indiana as follows: “In our opinion, when the homicide is committed within the *res gestae*of the felony charged, it is committed in the perpetration of, or attempt to perpetrate, the felony, within the meaning of the statute” *(Bissot*v. *State, supra).*For the reasons which we have endeavored to make clear, we believe that this construction of the statute is not only reasonable, consistent, conservative and just, but" that it exactly conforms to the legislative intent as expressed.

Again, if Castor had been indicted for murder with delibefate and premeditated malice, upon the facts as conceded here he would have been found guilty of murder in the first degree. This is the doctrine of a large number of cases in this country and England. See cases cited in 21 Am. & Eng. Ency. Law, 2d Ed., 141, n. 2. So that the defense here made is purely technical and tends to defeat substantial justice.

The judgment of the circuit court is

*Affirmed.*

Shaucic, C. J., Summers and Spear, ' J J., concur.

*79Price, J.

(dissenting). As I can not agree with the majority in this case, it is proper that some of the reasons for my dissent be placed on record. Our difference is one of degree, for it is my judgment, that accepting as true all the state claims the evidence establishes or tends to establish, and taking the facts as stated in the majority opinion, the crime of Conrad was not beyond murder in the second degree.

However, there is one controlling fact omitted from the statement of the case, although it is found in the body of the opinion. That fact is, that neither Conrad nor his companion took property of any kind from the building broken and entered, and Conrad was not in possession of any booty taken therefrom when the killing of Davis occurred, nor was he attempting to carry away anything from the house at the time. It is conceded that neither he nor his companion had time or opportunity to steal anything while inside. This fact clearly distinguishes this case from several cases cited and relied on by the majority.

The indictment of Conrad is based on the provisions of Section 6808, Revised Statutes, and as it is the comment text for all of us in this discussion, and does not appear elsewhere in the record, it is copied here, as follows: “Whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating, or attempting to perpetrate, any rape, arson, robbery or burglary, kills another, is guilty of murder in the first degree and shall be punished by death, unless the jury trying the accused recommend mercy, in which case the punishment shall be *80imprisonment in the penitentiary during life.” + * *

Therefore, when Conrad plead guilty to the charge of violating this section, or, using the language of Section 7316, Revised Statutes, was “convicted by confession in open court,” it' became the duty of the court to “examine the witnesses and determine the degree of crime and pronounce sentence accordingly.”

I am thoroughly persuaded that the degree determined by the court and on which sentence of death was pronounced is excessive, and that no case has been made by the -state to justify that degree of homicide. No case has been cited, and the most careful search has failed to find any case containing anything like similar facts to these, which sustains or even encourages the sentence pronounced in this case.

Did Conrad take the life of Davis while perpetrating or attempting to perpetrate the burglary described? Was he still committing burglary when Davis was shot- on the vacant lot twenty-five or thirty feet from the residence burglarized; a lot not owned by the owner of such residence? If the pursuit of Conrad had continued for a mile in the city and thence to the country and another county, would the burglary follow such effort to escape? And would the killing of the pursuing officer thus distant from the scene of the burglary, be a killing in the perpetration of a burglary? If not, he could not be legally adjudged guilty of murder in the first degree under the present indictment, although he did kill Davis while resisting arrest. The latter is not the charge made against the accused. The reiidence *81was unoccupied at the time, and it is not claimed that there was any evidence tending to show a conspiracy to kill any one in case of flight or pursuit. Such purpose was denied by the accused. Having secured no booty or plunder, 'it was perfectly legitimate for the burglars to abandon their purpose and leave the premises.- It was their duty to do so, for they were criminal trespassers. This does not mean that they had a right to resist and kill an officer who was trying to prevent their escape, but that they had completed the burglary and the subsequent killing away from the building was no part of it. Their efforts to retreat from the premises, they having no booty taken from the residence, were not *res gestae*of the burglary, and therefore the killing of Davis during their flight was not *res gestae*of the burglary. To use a homely illustration, the majority put the cart before the horse.

If the statute made it burglary to break *out*of such building, and the accused took life in so doing, or in trying to escape, the doctrine that the - killing was *res gestae*of such a burglary might apply. But the killing in this case was not *res gestae*of the burglary as charged in the indictment. This view is entirely consistent with every case cited in the majority opinion. Let us see if this is not true.

In the case of *Bissot*v. *State,*53 Ind., 409, it appears that the killing was done after the house had been broken and entered, and while the burglar and the person killed — a watchman— were both in the house. Under such circumstances that court held the killing to be *res gestae*of the burglary.

*82
      *United States*v. *Hartwell,*73 U. S., 385, is also cited. There the court was considering the construction of a federal statute in a case of embezzlement, and it became important to know what persons came within the provisions of the federal statute, and the principle stated in the third branch of the syllabus is: “The admitted rule that penal statutes are to be strictly construed is not violated by. allowing these words to have full meaning, or even the more extended of two meanings, where such construction best harmonizes with the context, and most fully promotes the policy and objects of the Legislature.” I commend to the majority the reading of the opinion where the above principle is discussed, as found on pages 395-6.

The illustration found in the opinion and assumed to be taken from *Commonwealth*v. *Eagan,*190 Pa. St., 10, fails to fortify the position of the majority. The purport of that case is, that where confederates, intending to break and enter a dwelling for a felonious purpose, and while watching the same, saw the owner come out of the house and cross the road to his barn, and they followed him with intent to- overcome and disable him, and did assault him, from which assault he died, and they then returned to the yard with intent to break into the house, but were frightened away by the approach of a team, such acts done in the execution of an admitted intent, were sufficiently approximate to the attempt to burglarize, that the court should submit to the jury the question of an attempt at burglary as well as robbery. In commenting on that case, the majority opinion submits the following: “Let us *83suppose a case. Two confederates, intending to break and enter a dwelling for a felonious purpose, are met by the owner at the door or window which they are forcing, and they kill him. Would anybody question that such a killing was in the perpetration of a burglary? Surely not.” Yes, I would question it, and further add, that the killing in the supposed case occurred in an *attempt*to perpetrate a burglary, which was one of the questions submitted to the jury in *Commonweath*v. Eagan, *supra.*Our statute would cover such a supposed case as an attempt to perpetrate a burglary.

But there is more to be said of that case. The court say on page 21: “It is beyond dispute that there was an intent to commit burglary, but that it was not carried to completion. The question is, did it stop at the mere intent, or did it amount to an attempt?” The court then discusses the connection the overt acts have with the intent. There were acts of violence in either attempting to rob the owner at the barn, or disable him so they might break into his dwelling. A consideration of the whole case and the points at issue and decided, will show it without value here, except as a mere sidelight. This will more fully appear by the language of that court on page 22.

The case of *Dolan*v. People, 64 N. Y., 485, is also cited. It deals almost entirely with questions of criminal practice and pleading under the statutes of that state, and contains no statement of the facts attending the commission of the crime charged. The only thing found in it pertinent to our subject is a paragraph of the syllabus, on page 486, to-wit: “Where one breaks into a dwell*84ing-house burglariously with intent to steal, he is engaged in the commission of the crime until he leaves the building with the plunder; and if, while engaged in any of the acts immediately connected with the crime, he kills a person resisting him, he is guilty of murder under the statute.” It is a fair inference from the statement, that the killing in that case occurred while in the building or while the burglar was leaving it with his plunder. But suppose the burglar had left the building without hurting any one and took no plunder, would the burglary continue indefinitely after-wards ?

Nor does the pawnshop case *(State*v. *Brown,*7 Ore., 186) come any nearer to the one at bar. The very quotation from it which appears in the majority opinion proves this statement. The doctrine there stated is, that “the taking of goods to constitute robbery, is not *necessarily*concluded so as to complete the crime by the removal of the goods beyond the presence of the owner, and to constitute a killing during a robbery, it is not necessary that the killing should be determined at the precise place and time of the act of violence.” There the persons entered the store, disabled the owner, took the contents of the safe and with them proceeded up street. Being pursued, they fired at the pursuer and killed a bystander. The robbery was still on, because the possession of the stolen goods continued the robbery to the street.

It has been decided by this court, that a person bringing property into this state which he had stolen in another state may be convicted here of larceny *(Hamilton*v. State, 11 Ohio, 435; *Stan*
      *85
      *ley*v. *State,*24 Ohio St., 168). The continued possession of the stolen goods in our state makes it larceny here, is the spirit of the decisions.

We next come to the California case *(The People*v. *Vasques,*49 Cal., 560). The third paragraph of the syllabus states all that can be claimed as bearing on this controversy. It reads: “If several are associated together in the commission of a robbery, and one of the associates does not intend to take life and prohibits the others from taking life, yet, if one of his associates takes life while they are engaged in the robbery, and in furtherance of the common purpose to rob, he is as much guilty of murder in the first degree as though his own hand had given the fatal blow.”

That doctrine is as old as the criminal law itself, and is the same doctrine laid down in *Stephens*v. *State,*42 Ohio St., 150, cited in the opinion. So also with the Loveland case, decided recently by this court and referred to in the opinion. He was one of three conspirators to rob Geyer in his home. He may not have contemplated homicide in doing so — he may have forbidden it when the conspiracy was formed. But he took the part assigned to him and was watchman in the highway for those who entered the house. Burglary and robbery both were in contemplation to obtain Geyer’s money. In law he was present at the robbery and the killing, and was held liable for murder. This concludes a brief review of all the cases cited in support of the majority opinion.

But why quibble and halt in the face of the plain language of our statute? There is not a technical word in it, and all we need to do, is, give *86the construction that other plain language receives at the hands of the court. We are dealing with a penal statute, and such statutes must be construed strictly, and can not be extended by implication to cover cases not strictly within their terms. So held in *Hall*v. *State,*20 Ohio, 8; *Shultz*v. *Cambridge,*38 Ohio St., 659; *White*v. *Woodward et al.,*44 Ohio St., 347.

I fear that the decision of the majority in this case smacks of judicial legislation. For these reasons I think the sentence pronounced should be set aside and the case remanded for re-sentence according to the facts and the law.

Crew, J.

(dissenting). I dissent from the opinion of the majority of the court in this case for the reason, that in my judgment the facts of this case do not warrant the conclusion reached by them that the homicide charged was committed by the accused, Frank Conrad, while in the act of perpetrating or attempting to perpetrate a burglary. At the time of the killing the burglary had been completed — Conrad had left the house and premises, and was then attempting to escape. In his flight, and after he had wholly escaped from and quitted the house and premises in and upon which the burglary had been committed, he encountered Davis, a police officer, who attempted to stop or arrest him. Whereupon, Conrad, in order to prevent arrest, and to enable him to continue his flight and make good his escape, shot and killed Davis. These facts being conceded, can it be rightfully said that such killing under such circumstances was, either in law or fact, in aid or furtherance of an attempt or purpose on the *87part of Conrad to commit a burglary? Clearly not, I think. While it may not be said that to warrant conviction in this case it was necessary that the killing should have preceded the burglary, or that the killing must have taken place- at the precise moment when the burglary was attempted or committed; yet it was, and is, essential to a valid conviction under this indictment that the killing should have been concurrent with and a part of the perpetration of the burglary. And it is not enough merely, that such killing occurred soon after the burglary was committed, and within a short distance of the premises or place where it was committed.

The plaintiff in error, Frank Conrad, was indicted under Section 6808, Revised Statutes, which reads as follows: “Whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating, or attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree and shall be punished by death, unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life. * * * ” To justify a conviction under this section for murder in the first degree because of a homicide committed “in perpetrating or attempting to perpetrate any rape, arson, robbery or burglary,” it must appear that there was such actual legal relation between the killing and the felony committed or attempted, that it can be affirmed of the killing, that it occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it. This, I think, for the reasons above stated, can not be said *88of the killing in this case. Therefore, the finding and judgment of the court that this homicide occurred while Conrad was engaged in the perpetration of a burglary, finds no sufficient warrant either in the circumstances of the killing or from the conceded facts in this case.