Davis v. Commonwealth
110 S.E. 356, 1922 Va. LEXIS 46, 132 Va. 521 (1922)
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Rule of Law:
An entry into a dwelling made with the unlimited and ongoing consent of the owner or occupier does not constitute a 'breaking' for the purposes of a burglary conviction, even if the entrant possesses felonious intent.
Facts:
- Annie Davis was an intimate associate and friend of E. P. Fowlkes and Dolly Wingfield.
- Fowlkes and Wingfield gave Davis a key to their house with their consent and encouragement.
- Davis was treated "the same as homefolks" and was permitted to be in the house day and night, coming and going at will.
- Her right to enter the premises was as free and unlimited as that of the residents themselves.
- Davis was not a servant, employee, or caretaker; her relationship was purely that of a companion and friend.
- Davis allegedly entered the house and stole $412.50 from Dolly Wingfield.
Procedural Posture:
- Annie Davis was charged with burglary under an indictment.
- At the trial court level, Davis was convicted of burglary.
- The trial court sentenced Davis to five years of confinement in the penitentiary.
- Davis appealed the judgment, arguing that the verdict was contrary to the law and evidence.
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Issue:
Does an individual commit a 'breaking' sufficient for a burglary conviction when they enter a dwelling with the owner's unlimited and ongoing consent, even if they enter with the intent to commit a felony?
Opinions:
Majority - Kelly, P.
No. A breaking, as an essential element of burglary, must be an entrance contrary to the will of the occupier of the house. Here, the defendant, Annie Davis, had the undisputed and unrestricted right to enter the premises at any time, a privilege as free as that of the owners themselves. A 'breaking' can be actual (involving slight force) or constructive (involving threats or fraud), but both require an entry against the owner's consent. While an employee or caretaker with limited authority who enters with felonious intent might be guilty of burglary, Davis's consent to enter was unlimited. Because her entry was by the voluntary act and consent of the owners, there was no 'breaking,' and therefore she cannot be convicted of burglary.
Analysis:
This decision clarifies the scope of the 'breaking' element in the crime of burglary, establishing that consent can be a complete defense. It draws a crucial distinction between individuals with limited, purpose-based authority to enter (like a servant) and those with unlimited, unrestricted access (like a family member or close friend). The ruling prevents the expansion of burglary to encompass thefts committed by individuals lawfully and willingly on the premises, reinforcing that the essence of burglary is the trespassory invasion of a home, not just the subsequent felony committed within it.
