Thomas v. Commonwealth
150 Ky. 374, 150 S.W. 376, 1912 Ky. LEXIS 895 (1912)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under a statutory charge of housebreaking with intent to steal, the subsequent act of larceny is evidence of the felonious intent and does not constitute a separate, lesser included offense for which a defendant can be convicted.
Facts:
- Someone broke into the dwelling house of Joe Dinnelli at 423 South Upper Street, Lexington, KY, by breaking the latch on a window.
- At the time of the break-in, the house was unoccupied.
- A brass stove and lead pipes, with a collective value of over $20.00, were stolen from the house.
- A day or two after the theft, Luther Thomas was in possession of the stolen items.
- Thomas sold the identified items to a dealer.
- Thomas did not provide a satisfactory explanation for his possession of Dinnelli's property.
Procedural Posture:
- Luther Thomas was first indicted in Fayette Circuit Court for breaking into a 'storehouse' belonging to Joe Dinnelli.
- At the first trial, evidence showed the building was a 'dwelling house,' creating a variance with the indictment.
- The trial court issued a peremptory instruction to the jury, which returned a verdict of acquittal for Thomas.
- A grand jury then returned a second indictment against Thomas, charging him with breaking into the 'dwelling house' of Joe Dinnelli and stealing the same property.
- Thomas entered a plea of former acquittal, arguing double jeopardy, which the trial court rejected.
- At the second trial, the jury found Thomas guilty of grand larceny.
- The court entered a judgment and sentence of one to five years in the penitentiary.
- Thomas's motion for a new trial was denied by the trial court.
- Thomas (appellant) appealed the conviction to the Kentucky Court of Appeals (the state's highest court at the time).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is grand larceny a degree of or an offense included within the statutory crime of housebreaking, such that a jury may convict a defendant of grand larceny under an indictment for housebreaking?
Opinions:
Majority - Settle
No, neither grand nor petit larceny are degrees of the crime of housebreaking. The indictment for housebreaking charges a single offense, and the allegation that property was actually stolen serves as evidence of the felonious intent with which the breaking was committed. The court reasoned, citing Farris v. Commonwealth, that the gravamen of the offense is the breaking with a felonious intent. The words in the statute, 'with intent to steal, or shall feloniously take therefrom,' both relate to the single offense of breaking the house. Therefore, the provisions of the criminal code allowing conviction for a lesser included offense do not apply, and it was improper for the trial court to instruct the jury that it could find the defendant guilty of grand larceny. The court also held that a temporarily unoccupied house remains a 'dwelling house' under the statute, and that the appellant's prior acquittal for breaking into a 'storehouse' did not constitute double jeopardy because the proof of a 'dwelling house' created a fatal variance between the indictment and the proof in the first trial, meaning he was never legally in jeopardy for the correct offense.
Analysis:
This decision clarifies the legal structure of statutory housebreaking offenses in Kentucky, establishing that they are single, unified crimes rather than a combination of breaking and larceny. It prevents a jury from convicting on the lesser offense of larceny when the state fails to prove the elements of the breaking, thereby protecting the integrity of the specific statutory charge. The ruling reinforces the principle that an indictment must be precise, and that double jeopardy does not attach where an acquittal results from a material variance between the charge and the evidence, as the defendant was never truly at risk of conviction for the crime proven.
Unlock the full brief for Thomas v. Commonwealth