208 La. 602

#### STATE v. McDONELL.

No. 37778.

Supreme Court of Louisiana.

June 5, 1945.

Dissenting Opinion June 7, 1945.

Rehearing Denied June 29, 1945.

Rudolph F. Becker, Jr., of New Orleans, for appellant.

Fred S. LeBlanc, Atty. Gen., Michael E. Culligan, Asst. Atty. Gen., and James P. O’Connor, Jr., Dist. Atty., and Joseph F. Monie, Asst. Dist. Atty., both of New Orleans, for the State.

FOURNET, Justice.

The accused, Lawrence McDonell, Jr., having been convicted on a charge filed in a bill of information with breaking and entering in the nighttime with intent to steal, filed a motion for a new trial on the ground that the jury’s finding of his guilt was contrary to the law as given them by the court that nighttime is any time from sundown to sunup, and daytime as any time from sunup to sundown, since the evidence shows the prosecuting witness testified the offense had been committed between the hours of 6 and 7 p. m. on July 11, 1942, and, according to the letter of P. J. Naughton, Associate Meteorologist of the Weather Bureau of the United States Department of Commerce, attached to and made a part of the motion for a new trial, the sun did not set until 8:04 p.m. CWT on that day, and reserved the bill forming the basis of this appeal when the trial judge refused to grant such motion.

The judge who tried the case having died, prior to the imposition of sentence, his successor in office sentenced the accused as a multiple offender under Act No. 15 of 1928 to serve 28 years at hard labor in the state penitentiary and we find in the per curiam prepared by this judge from the- record as made up that it was his opinion “The transcribed testimony of the State witness Lucille Rubel, made part of the motion for new trial, shows that the jury’s verdict was a proper one. While it is true that the witness places the defendant as committing the crime between 6:00 P.M. and 7:30 (7:00) P.M., she, nevertheless, at two places in her testimony fixes the breaking and entering as having occurred after sunset. * * * In the Court’s mind the witness was probably confused as to the time. As to the ques*231tion of the period of the day, she specifically fixed the time as after sunset. * * * The jury found as a fact that the crime was committed after sunset. The evidence was sufficient for such finding.”

We find no error in the trial judge’s ruling, for, as expressly provided in the Constitution of 1921, “The appellate jurisdiction of the Supreme Court shall ' * * * extend to criminal cases on questions of law alone * * Section 10 of Article VII. See, also, State v. Perez, 151 La. 526, 92 So. 45; State v. Clary, 152 La. 757, 94 So. 385; State v. Minor, 154 La. 595, 97 So. 873; State v. Allen, 156 La. 676, 101 So. 18; State v. Bush, 156 La. 973, 101 So. 382; and State v. Watts, 171 La. 618, 131 So. 729. *"It is only where there is no evidence at all upon some essential element of crime charged that [the*court] *may set aside a verdict** * State v. Holder, 159 La. 82, 105 So. 232, 233. See, also, State v. Wells, 147 La. 822, 86 So. 268; State v. Edwards, 155 La. 305, 99 So. 229; State v. Giangosso, 157 La. 360, 102 So. 429; State v. Dunnington, 157 La. 369, 102 So. 478; State v. Wilson, 196 La. 156, 198 So. 889; State v. Martinez, 201 La. 949, 10 So.2d 712; State v. Dow, 203 La. 707, 14 So.2d 610; and State v. Nomey, 204 La. 667, 16 So.2d 226, 227. For, as pointed out in the Nomey case, “ * * * a complaint that a conviction is based upon no evidence at all * * * presents the question of law of whether it be lawful to convict an accused without any proof whatsoever as to his guilt.” *But "Where there is some evidence to sustain the conviction, no matter how*little, *this court cannot pass upon the sufficiency thereof. That comes within the exclusive province of the trial fudge and jury."*State v. Gani, 157 La. 231, 102 So. 318. See, also, State v. Maloney, 115 La. 498, 39 So. 539; State v. Tyler, 150 La. 131, 90 So. 538; State v. Venezia, 151 La. 349, 91 So. 761; State v. Rogers, 152 La. 905, 94 So. 439; State v. Bradford, 167 La. 827, 120 So. 382; State v. Dennis, 168 La. 618, 122 So. 869; State v. Campbell, 173 La. 831, 138 So. 853; State v. Fountain, 175 La. 221, 143 So. 55; State v. Bonner, 193 La. 387, 190 So. 621; and State v. Allen, 200 La. 687, 8 So.2d 643. (Italics ours.)

In our opinion there was not only *some*evidence from which the jury could conclude the breaking and entering had been at night, but, also, as the judge of the lower court pointed out, the evidence was *sufficient*to warrant such finding. While it is true the prosecuting witness, answering a question as to what *time*she saw McDonell break and enter the Rivet apartment, said it was “between six and seven,” we are of the opinion, as was our learned brother below, that in making this statement she was confused as to the time for when further interrogated on this point she specifically fixed the time of the occurrence as that time of the day after sunset, for she declared it was just getting dark. This is in keeping with her prior statement that the accused had visited at her apartment earlier in the day and that “he came back at *night*when Mr. and Mrs. Rivet went to the show,” at which time the offense with which the accused was charged was commited. (Italics ours.)

We think the jury took this same view of the matter, for, as pointed out by the accused in his motion for a new trial, the trial judge, obviously because of this evidence, charged the jury on the law with respect to breaking and entering in the nighttime and the daytime. While his charge .is not in the record, we have no doubt the trial judge also instructed the jury, in charging them, that if they found from the evidence the breaking and entering had been after sundown, it was their duty to bring in a verdict of guilty as charged, but that if they found from the evidence the breaking and entering had been before sundown, they should bring in a verdict of guilty of the lesser crime, that is, breaking and entering in the daytime.

For the reasons assigned, the conviction and sentence of the accused is affirmed.

O’NIELL, C. J., dissents and assigns reasons.

HIGGINS, J., dissents and assigns reasons.

ROGERS, J., dissents.

O’NIELL, Chief Justice

(dissenting).

The defendant is appealing from a conviction and sentence for breaking and entering a dwelling house in the nighttime with intent to steal.

The only bill of exception is one which was reserved to the overruling of a motion for a new trial. The motion was founded upon the fact that there was no *232proof or evidence that the alleged breaking and entering was done in the nighttime, and that in fact the only evidence offered by the State on the subject showed affirmatively that the breaking and entering was done in the daytime.

This court would not have jurisdiction if the question were whether the evidence offered on the trial of the case was suffi-. cient or insufficient to convict the defendant of breaking and entering in the nighttime. But the question is whether the defendant was convicted legally of breaking and entering in the nighttime without any proof or evidence that the alleged breaking and entering was done in the nighttime.

The only evidence that was offered to prove the time at which the alleged breaking and entering was done was the testimony of one witness, a woman, who testified for the State that she saw the defendant open the door and enter the house and that it was done sometime between the hours of 6 and 7 o’clock p.m. on the date charged in the bill of information, namely, July 11, 1942.

On the trial of the motion for a new trial it was shown by a certificate of the meteorologist in charge of the local bureau that, on July 11, 1942, the sun rose at 6:07 a.m. and set at 8:04 p.m. Central War Time, which time went into effect in New Orleans on February 9, 1942. There is therefore no reason to doubt that when the witness testified that the breaking and entering was done between 6 and 7 o’clock she was referring to Central War Time, and not to Central Standard Time, which had been abolished in New Orleans for a period exceeding 5 months at the time of the alleged crime, and for a period exceeding 7 months at the time when the witness was testifying. At that time all of the timepieces in New Orleans showed Central War Time. Accordingly, the only evidence offered or relied upon by the State showed that the alleged breaking and entering was done more than an hour before sunset. Even if it should be presumed that the State’s witness referred to Central Standard Time — -which is not at all probable — the fact would be that the latest time at which she fixed the alleged breaking and entering was a few minutes before sunset. It is sufficient to say, however, that there was no evidence at all to show that the alleged breaking and entering was done after sunset.

All of the testimony on this subject is made a part of the bill of exceptions. The State’s witness, being questioned by the prosecuting attorney, stated emphatically that the crime was committed between 6 and 7 o’clock. On cross-examination she said that the defendant came' “in the early part of the day” to her apartment, adjoining the apartment alleged to have been entered; that after conversing with her for a while, on her porch, he left the house, and that “he came back at night”. But she explained immediately that the time at which he came back and entered the apartment next door to hers was not at night but was between 6 and 7 o’clock in the evening. The whole re-examination of the witness by the prosecuting attorney consisted of only three questions and answers, and fixed the time at which the alleged breaking and entering was done— thus:

> “Q. About what *time*was it when you say you saw McDonell get into Rivet’s apartment ? ■

> “A. Between six and seven.

> “Q. What’s that?

> “A. Six ánd seven, between there.

> “Q. Was it dark or daylight?

> “A. It was just getting dark.”

The authorities all maintain — and it is not disputed — that, in distinguishing the crime of breaking and entering in the daytime from the crime of breaking and entering in the nighttime, “daytime” means the period between sunrise and sunset, and “nighttime”, following a short period of twilight, is the period between sunset and sunrise. 28 Words and Phrases, Perm.Ed., pp. 669, 673, Verbo Nighttime. The late Judge Rufus E. Foster, when he was the Louisiana member of the United States Circuit Court of Appeals for the Fifth Circuit, speaking for the court in the case of Distefano v. United States, 58 F.2d 963, 964, recognized that there is a period of twilight between daytime and nighttime — thus:

> “The officer serving the warrant testified that he served it at nighttime, about 7:30 p. m. According to official records, on April 4, 1931, the sun set at Baton Rouge at 6:25 o’clock. There is no doubt that daytime continues after sunset for a limited period, but we may take notice that it is dark and nighttime an hour and five minutes after the sun has set, in the *233vicinity of Baton Rouge, where the period of twilight is notoriously short.”

In a publication entitled Criminal Formu-lary and Instructions to Juries, by a former Attorney General of Louisiana, Eugene Stanley, having reference particularly to the law of this State, on page 444, the author declares, as his opinion, that nighttime begins about one hour after sundown, at which time twilight ceases. It is not necessary for the court to go that far in this case.

The date of the alleged crime in this instance was previous to the adoption of the Criminal Code. The prosecution was under section 851 of the Revised Statutes, as amended by Act 71 of 1926, defining the crime of breaking and entering a dwelling house in the nighttime. In the Criminal Code burglary in the nighttime is defined in article 60 as the unauthorized entering of an inhabited dwelling between sunset and sunrise. Burglary in the daytime is defined in article 61 as the unauthorized entering between sunrise and sunset. The writers of the Criminal Code therefore, in defining nighttime and daytime, merely observed the general rule that, in distinguishing burglary in the nighttime from burglary in the daytime, nighttime means the time between sunset and sunrise and daytime means the time between sunrise and sunset. In the repealing clause of the Criminal Code, in section 2 of article 142, sections 851 and 852 of the Revised Statutes, which were superseded by articles 60 and 61 of the Criminal Code, were repealed specifically.

As there is no evidence whatever that the crime charged in this case was committed in the nighttime, the conviction of the defendant of breaking and entering in the nighttime is not a valid conviction. A conviction had without any proof of a particular fact which is an essential element of the crime charged is not a valid conviction; and the question presented in such a case is not a question of fact but a question of law, of which the Supreme Court has appellate jurisdiction. State v. Wells, 147 La. 822, 86 So. 268; State v. Edwards, 155 La. 305, 99 So. 229; State v. Gani, 157 La. 231, 102 So. 318; State v. Giangosso, 157 La. 360, 102 So. 429; State v. Dunnington, 157 La. 369, 102 So. 478; State v. Wilson, 196 La. 156, 198 So. 889. The same rule is applicable to cases tried by the judge without a jury. State v. Rogers, 152 La. 905, 94 So. 439; State v. Bush, 156 La. 973, 101 So. 382; State v. Gremillion, 160 La. 121, 106 So. 716; State v. Russell, 161 La. 167, 108 So. 324; State v. Daniels, 164 La. 737, 114 So. 636; State v. Singley, 195 La. 519, 197 So. 218; State v. Dow, 203 La. 707, 14 So.2d 610; State v. Nomey, 204 La. 667, 16 So.2d 226.

For these reasons I respectfully dissent from the majority opinion and decree.

HIGGINS, Justice

(dissenting).

As stated in the majority opinion, when there is not any evidence to sustain the verdict of the jury, a question of law is presented because an accused cannot be lawfully convicted without proof of his guilt. Therefore, if the State failed to offer any evidence to show that the alleged burglary was committed at night, the verdict of the jury is illegal and this Court has the authority and jurisdiction to annul it. The record in the instant case is barren of any evidence to show that the alleged offense was committed at night. On the contrary, the State’s proof shows that it occurred during the daytime. Consequently, the verdict is illegal because it is not sustained by any evidence. The crime of burglary in the nighttime as distinguished from burglary in the daytime is punished much more severely than the latter and hence the accused has a substantial legal reason for complaining.

Even giving the State the full benefit of the latest possible time set by its only witness at 7 o’clock in the evening while “It was just getting dark”, the testimony instead of tending to show that the alleged offense was committed at nighttime, establishes the irrefutable fact that the alleged burglary occurred in the daytime.

The mere fact that the judge of the trial court might have properly charged the jury on the law with reference to burglary in the nighttime and burglary in the daytime has no significance whatever with reference to the issue presented. The judge could not comment on the facts and he was obliged to instruct the jury on the law with reference to both of these offenses. The accused was charged with burglary in the nighttime and a verdict of guilty of burglary in the daytime, a lesser offense, would have been responsive. The question before the Court is whether or not there is any evidence in the record to prove that the alleged burglary was committed at night. The State’s sole and only witness made the statement that tire *234accused returned to the apartment at night but, immediately thereafter, she stated that he entered the apartment between 6 and 7 o’clock in the evening when “it was just getting dark”. She repeated this statement on cross-examination and redirect examination. It is obvious that she qualified her first general statement by specific information, which conclusively shows that the alleged burglary happened in the daytime and not in the nighttime.

For these reasons, I respectfully dissent.