
    THE STATE OF UTAH, Respondent, v. ARTHUR MILLER, Appellant.
    No. 1342.
    (67 Pac. 790.)
    Burglary: Sufficiency of Proof: Evidence as to time.
    Burglary, which, under Revised Statutes, sections 4334, 4338, must be committed between sunset and sunrise, is not proved by evi- , denee that goods were stolen from a building between 9:30 p. m. and 6:30 a. m.; the sun rising at 4:38 a. m.
    (Decided February 17, 1902.)
    Appeal from the Second District Court, Weber County — Hon. H. II. Bolapp, Judge.
    The defendant was convicted of the crime of burglary and appealed.
    REVERSED.
    
      Elijah Farr, Esq., for appellant.
    
      Hon. M. A. Breeden, Attorney-General, and Hon. W. B. White, Deputy Attorney-General, for the State.
   BART'OH, J.

Tbe defendant was convicted of tbe crime of burglary, alleged to have been committed on July 2, 1901, by unlawfully and feloniously entering a store in tbe nighttime in Ogden, witb intent to commit larceny. Tbe evidence showed that on tbe second of July, 1901, tbe owner of tbe store closed it up and quit business for that day at 9:30 ■p. m., and opened it up again tbe next morning at 6:30 a. m., when be found that it bad been broken into, and some of tbe goods, which were all there when be closed at 9:30 p. m., were missing. On that day tbe sun arose at twenty-two minutes of 5 o’clock a. m. Later in tbe day, it appears, tbe missing goods were found in tbe possession of tbe defendant, who was trying to sell them. When arrested, tbe prisoner claimed be got tbe goods from another man. Such is tbe character of the evidence upon which tbe conviction of tbe offense is based. Tbe appellant insists that the evidence is insufficient to warrant tbe conviction. This point seems to be well taken. Section 4334, Revised Statutes, so, far as material here, provides: “Every person who, in tbe nighttime, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any bouse, room, apartment, .. . store, ... witb intent to commit larceny or any felony, is guilty of burglary.” Section 4338, Revised Statutes, reads: “Tbe phrase ‘nighttime,’ as used in this chapter, means tbe period between sunset and sunrise.” TJnder these provisions of tbe statute it will be seen that, even though a building of tbe kind mentioned be broken into and goods stolen, tbe offense does not amount to burglary unless committed between sunset and sunrise. Erom tbe evidence it appears tbe goods were stolen some time between 9:30 in tbe evening and 6:30 in tbe morning. But 6:30 a. m. is nearly two hours after sunrise; hence, if it be admitted that the defendant was'proven to have taken the goods, still it is impossible to say from tbe proof that be took them in tbe nighttime, for be may have taken them after sunrise and before 6:30 a. m. Nor are there any circumstances in evidence of such a character as to show beyond a reasonable doubt that the prisoner took the goods in the nighttime. If he broke into the store and stole them in the daytinie, after sunrise, the offense.was not burglary. An essential element of the crime of burglary is that the offense was committed — the acts done' — in the nighttime. Evidence of this is wholly wanting in this case. The record contains no proof of the crime itself, and the conviction of the prisoner of burglary is therefore unwarranted. In State v. Gray, 23 Nev. 301, 46 Pac. 801 — a case quite, similar to the one at bar — it was said: “The defendant was convicted of burglary, and, admitting that the evidence was sufficient to support the conclusion that the defendant entered the barn and stole the saddle therefrom, there was nothing to prove that it was done in the nighttime, and nothing from which that fact could be inferred. We may suspicion quite strongly that it was, but suspicions, however strong, are not sufficient to convict men of crimes. There must be evidence of every essential element of the crime, and it must be of sufficient weight to convince an impartial jury beyond reasonable doubt.”

The judgment is reversed, and the cause remanded.

MINER, C. J., and BASKIN, J., concur.  