Section 790 of the Revised Statutes, as amended by Act No. 24 of 1882, which makes it a capital offense to shoot, stab, cut, strike, or thrust any person with a dangerous weapon with intent to commit murder, while committing or attempting to commit the crime of burglary, has reference only to the crime of burglary, as defined either in the common law or by the statutes of this state, which means breaking and entering in the nighttime, not breaking and entering in the daytime.
The crime of breaking and entering is not burglary, under the common law, unless it is committed in the nighttime. Ballentine's Law Dictionary, 178; Black's Law Dictionary, verbo Burglary; Wharton's Criminal Law, 7th Ed., vol. 2, p. 302, § 1531; Russell on Crimes, 6th Ann.Ed., vol. 1, 786; 4 Blackstone's Com. 227; 4 R.C.L. 415; State v. Ward, 147 La. 1083, 86 So. 552.
There is no such crime as burglary, under any statute of this state, unless the breaking and entering is done in the nighttime. In every instance where a statute of this state calls the breaking and entering of a house "burglary," it refers to breaking and entering in the nighttime. And in every statute that denounces the crime of breaking and entering in the daytime, the crime is merely defined and denounced as a crime, and the penalty is prescribed, without calling the crime burglary.
This capital crime, of which the defendant was accused, was provided against by section 7 in the Crimes Act, called, "An *Page 363 Act Relative to Crimes and Offenses," being Act No. 120 of 1855, p. 130. Section 7 was copied, verbatim, as section 790 of the Revised Statutes of 1870. The only change that has been made in the law is the addition of the words "cut, strike," which were added by the amending act, Act No. 24 of 1882, after the word "stab."
The several different crimes of "breaking and entering" were provided against in sections 51, 52, 53, and 55 in the Crimes Act of 1855; and these sections were copied, verbatim, as sections 850, 851, 852, and 854, respectively, in the Revised Statutes of 1870. Sections 51, 52, and 53 of the act of 1855, being, respectively, sections 850, 851, and 852 of the Revised Statutes of 1870, refer to breaking and entering in the nighttime, and in every one of these sections the crime is called burglary. Section 55 of the act of 1855, which became section 854 of the Revised Statutes of 1870, provides against breaking and entering in the daytime, or entering without breaking in the nighttime; but the crime is not called burglary in either case.
Section 850 of the Revised Statutes was amended by Act No. 21 of 1926, and in the amending act the crime is called burglary. Section 851 of the Revised Statutes was amended by Act No. 71 of 1926, and in the amending act the crime is called burglary. Section 852 of the Revised Statutes was amended by Act No. 72 of 1926, and in the amending act the crime is called burglary. All of these statutes refer to breaking and entering in the nighttime. But in section 854 of the Revised Statutes, *Page 364 as amended by Act No. 20 of 1926, which refers to the crime of breaking and entering in the daytime, or entering without breaking in the nighttime, the crime is not called burglary.
I do not see how it is possible for the Legislature to have had in mind that the crime of burglary might be committed in the daytime, at the time when the Legislature adopted section 7 of the act of 1855, denouncing as a capital crime the crime of which the defendant in this case was accused, or when the Legislature copied section 7 of the act of 1855, as section 790 of the Revised Statutes of 1870, or even when the Legislature amended this section by Act No. 24 of 1882.
The decisions cited in the prevailing opinion in this case do not impress me as being opposed to my opinion on this subject. For example, in State v. Frank, 41 La.Ann. 596, 7 So. 131, the "breaking and entering" which was called "burglary" was committed in the nighttime, and was that which is called "burglary" in section 850 of the Revised Statutes. In State v. Anselm, 43 La.Ann. 195, 8 So. 583, the "breaking and entering" denounced in section 854 of the Revised Statutes was referred to, indifferently, as one of the varieties of the crime of "burglary," but there was no question before the court as to whether the crime should be called "burglary." In State v. Ward,147 La. 1083, 86 So. 552, the defendant was charged with the crime of breaking and entering a box car in the nighttime, with intent to steal, and was found "guilty of burglary in the daytime." *Page 365 This court declared the verdict invalid, and set it aside, on the ground that there was no such crime as burglary in the daytime. After quoting the common-law definition of burglary, the court said: "On the other hand, if we are to depend upon any statutory definition of burglary, where is it to be found?" In State v. Johnson, 167 La. 986, 120 So. 620, the crime of breaking and entering which the court dealt with was committed in the nighttime, and was denounced as burglary in section 852 of the Revised Statutes, as amended. In State v. Eiserloh, 172 La. 1071,136 So. 55, 56, the defendant was charged with the crime of breaking and entering a dwelling house in the nighttime, and was found guilty of breaking and entering in the daytime; and, as the court remarked, the only question presented was "the responsiveness of the verdict." It was held that the verdict was responsive.
I concede that the crime of burglary, in its various forms or degrees, like the other forms and degrees of the crime of breaking and entering, is a statutory crime in this state. But there was no statutory crime called burglary, unless committed in the nighttime, at the time when the crime of which this defendant was accused was made a capital offense, by section 7 of Act No. 120 of 1855, or when the law was retained as section 790 of the Revised Statutes of 1870, or when it was amended by Act No. 24 of 1882.
For these reasons, I respectfully dissent from the prevailing opinion in this case, with reference to bills of exception No. 2 and No. 3. *Page 366