DISSENTING OPINION There is a substantial difference between common law burglary and first degree burglary as defined by our statute, and it is, of course, with burglary as defined by statute that we are concerned. At common law it was necessary to break and enter the dwelling house of another in the night with intent to commit some felony within same. 2 Wharton's Criminal Law, § 968 (12th Ed.). And at common law the dwelling house was frequently spoken of, and is referred to in the prevailing opinion in this case, as the "mansion house." Under our statute, quoted in Note 1 of the prevailing opinion, the breaking and entering need not be of the dwelling or mansion house but may be the breaking and entering of any "other place of human habitation." I cannot believe that a well furnished cabin upon a creek or a cottage upon a lake where a man may go for rest and recreation and to fish on weekends is not the subject of protection under the statute here involved.
We think the prevailing opinion is unduly influenced by the common law idea of burglary. The prevailing opinion says that the statute "does use the term `dwelling house' the same as the common law and it will be presumed that the legislature intended to adopt the common law meaning of the term." I do not think the statute, or the cases cited, sustain this conclusion. The cases cited hold that where the legislature adopts the common law designation of an offense, and where a crime is defined by statute in generic terms, the courts will use the common law to aid in interpreting the statute, and that is substantially all the cases cited in the prevailing opinion say. But in the case before us, we do not have burglary defined in common law *Page 735 language or in generic terms alone. We have a definite meaning given which is different from the common law definition and we have the place which may be the subject of burglary extended from the dwelling house or "mansion house" to any other place of human habitation.
In the prevailing opinion the case of Gaines v. State (1921), 191 Ind. 262, 132 N.E. 580, is quoted to the effect that the word dwelling, as used in our burglary statute, imports a place of human habitation. That is true, but the converse is not true. A place of human habitation is not necessarily the dwelling or "mansion house" of the owner. The words "or other place of human habitation" can have meaning only if they mean more or something different from dwelling house, and we must assume the additional words were used with purpose. The whole theory of the prevailing opinion is based upon a contrary idea and has led to a mistaken conception of the force and effect of the evidence, so frankly quoted by Judge Emmert.
The whole question in this case is whether there was evidence from which the jury reasonably could have inferred that appellant had broken and entered a place of human habitation. It seems to me that the evidence set forth in the prevailing opinion is abundantly sufficient for this purpose. The case was tried by a jury of citizens who knew the language of their neighbors. Words must be considered in their generally accepted meaning. For the witnesses to say that a cabin on a creek is used as a summer fishing camp to which the owner went practically every weekend through the summer, and sometimes through the week, was sufficient to permit a jury of his neighbors to infer that this cabin was a place of human habitation. And when, in *Page 736 addition to this, there is evidence that the place was nicely furnished and that a sheet, among other things, was stolen from it, the inference becomes stronger. It is not necessary that a place of human habitation be occupied by its owner continuously, or that it be his exclusive dwelling. If it be a place where he goes and "stays," as the owner in this case testified he did practically every weekend, it is a place of human habitation, whether it be a cabin on a creek or a "cottage" similarly used at one of our more pretentious lake resorts.
In the case of State v. Bair (1932), 112 W. Va. 665,166 S.E. 369, 85 A.L.R. 424, the building broken into was located in a rural community and was used by its owner as a place of residence in vacation time and at weekends, particularly in warm weather, and it was held by the Supreme Court of Appeals of West Virginia that breaking into such a place constituted burglary. The jury reasonably could have inferred that the cabin in this case was in the same category.
In the prevailing opinion a number of cases are cited in support of the contention that the evidence set out does not justify an inference that the owner of the cabin had two "mansion houses." Again I want to say that it isn't necessary to break into a man's "mansion house" to be guilty of first degree burglary under the Indiana statute, and the cases cited in the prevailing opinion upon this point are predicated upon such different statutes and different facts as to make them of little persuasive value here and certainly they are not controlling.
In my opinion the evidence recited in the prevailing opinion in this case is sufficient to justify an inference by the jury that the cabin involved was a place of human habitation within the meaning of our statute. Whether or not it was, was for the jury, and, the jury *Page 737 having so determined, we may not substitute our judgment for theirs.
I think the judgment should be affirmed.
JASPER, C.J., concurs in this opinion.
NOTE. — Reported in 89 N.E.2d 74.