Wheelock v. State

Wheeler, J. In the law of burglary, an “ out house is construed to be a part of the dwelling house or mansion, if it be so near the dwelling house, that it is used with it, as appurtenant thereto, though not within the same inclosure ; and hence it is defined to be a small house or building belonging to a mansion or dwelling house, and usually standing separate from or without it, and a small distance from it. (Whart. Am. Cr. L. tit. “Burglary,” Bur. L. D. same title.) This was the construction or definition adopted, in order to bring the breaking and entering of such outhouses within the definition and punishment of burglary; which, at the Common Law, could not be committed by the breaking and entering of any other than the dwelling house. To prevent the escape of offenders, all outhouses which could by any reasonable intendment be held to belong to and constitute a part of the dwelling house, were so deemed and held; and hence the definition of an outhouse, in the law of burglary : it is a part of and is included under the term dwelling house. By the phrase, “ outhouse where people resort,” in the Act to suppress gaming, we do not suppose the Legislature meant to use the term outhouse in this sense. They surely did not mean a dwelling house, or any part of a dwelling house “ where people resort.” It is more in consonance with the other provisions of the Act to suppose the expression was used in its ordinary and popular acceptation, as meaning any house standing out and apart from houses occupied and used as dwellings, or business houses. In this sense it would include all unoccupied houses “ where people resort,” for gaming and other purposes ; and such houses we suppose were in the mind of the Legislature. The evidence shows that several persons had resorted to the house in question for the purpose of gaming; others appear to have been there, for what purpose does not appear. The witness, it is true, speaks of having been but once at the house. But from the fact that so many persons were found to have resorted to the house for such a purpose at that time, we think the jury might well conclude that it was resorted to for a like [256] purpose at other times, and, in a word, that it was a house commonly resorted to for gaming purposes. This, we think, was the fair inference from the facts in evidence before the jury; and the evidence was sufficient to support the indictment for playing, within the prohibition of the Statute, (Hart. Dig. Art. 1464,) at “ an outhouse where people resort.” The present is unlike the case of Smith v. The State, (23 Ala. R. 39.) There the playing was not in any house, or place mentioned in the Statute; but was at a considerable distance from any house, in a secluded and secret spot, chosen for its secrecy; and was only resorted to by the parties concerned in playing, and by them only on the one occasion. The evidence excluded any inference or supposition that the place was one of resort for any purpose by other persons, or by the same persons on other occasions. The Attorney General is probably mistaken in supposing the Court gave the charge copied in his brief. There is in the transcript what purports to be such a charge ; but it is not signed by the Judge ; nor is there any evidence in the record that it was given. It is not authenticated in any manner which entitles the subject matter of it to be revised or considered. The only question, properly presented by the record, for revision, is, whether there was evidence sufficient to warrant the verdict; and we are of opinion that there was. The judgment is therefore affirmed. Judgment affirmed.