
    Colbert v. The State.
    3. In a trial for burglary where it appeared that the accused was a servant in a boarding-house, and entered a hired room of a lodger by using the key which he obtained by taking it from where the occupant of the room usually kept it hanging up in the hall, and there was no evidence whatever that the accused had any duties to perform in the room, or that he had any permission to enter it, or had ever entered it by direction or permission of any one, it was not error as against him to instruct the jury that if he had a right to go in there, and went in by permission of the owner or permission of the person who had authority to send him in; if he was directed, for instance, to go in there and clean up the room or open it, and went in by permission of the owner, and after being in, stole, that would not be burglary but larceny from the house.
    2. Nor was it error to charge the jury thus: “ If the defendant asserts that he went in by permission of the landlady, it is his duty to make it appear, upon the State showing the room was broken and unlawfully entered and that the defendant did it — that it was unlawfully entered by the defendant by taking the key and opening the door; and if the defendant sets up that he went in there by permission of any one who had a right to give it, that it is his business to make it appear”; this charge being made while statingthe law applicable.to the case generally, and not while charging on the prisoner’s statement, and there being nothing whatever in the evidence adduced by the State tending to show that the accused had permission to enter the room, 'for any purpose. In another part of the charge the jury were distinctly informed that they were authorized to take the prisoner’s statement for what they thought it was worth and they could receive it all as true and accept it in preference to the sworn evidence. The statement set up that it was the business and practice of the accused to go into the room to clean it up, that he went in for that purpose on the occasion of the alleged burglary, and after so doing took the goods, locked the door, carried the key back and hung it up in its place.
    3. The evidence warranted the verdict, and there was no error in denying a new trial; but the long term of thirteen years in the penitentiary, imposed by the sentence, being apparently out of proportion with the circumstances attending the commission of the offence, direction is given that the accused, if not already undergoing his punishment, be resentenced, and that the presiding judge reduce the penalty if in his opinion, after further reflection, so doing will consist with the ends of justice and the proper enforcement of the law.
    May 22, 1893.
    Before Judge Bartlett. Bibb superior court. November adjourned term, 1892.
    C. P. Steed, by brief, for plaintiff in error.
    W. H. Felton, Jr., solicitor-general, by Harrison & Peeples, contra.
    
   Bleckley, Chief Justice.

Tbe indictment was for burglary. It charged that, with intent to commit a larceny, tbe accused, on tbe 25th of December, 1892, broke and entered tbe dwelling-house of G. T. Banks, tbe same being a hired room occupied by tbe latter in a public boarding-house kept by Miss Addie Gregory, and after so breaking and entering, proceeded to take therefrom two pairs of pants, each of the value of $2.50, and one coat and vest of tbe value of $10.00, tbe property of Banks. It appeared at tbe trial that in December, 1892, Mr. Banks was absent from bis room in tbe boarding-house from about six o’clock a. m.. of the 25th to 12 o’clock m. of 26th. - On leaving, he-locked the door and hung up the key in the hall, where-he was accustomed to keep it. "When he returned, the-room was locked and the key was in its proper place,, hut the clothing mentioned in the indictment had been-stolen from the room. The accused, who was previously employed about the boarding-house, in what capacity does not appear with certainty, but most probably as a servant, was gone. Within two weeks thereafter he was brought back to Macon with the clothes in his possession, having been arrested by the marshal of Forsyth,, a neighboring town. He confessed that he entered the room by unlocking the door with the key, and that he took the clothing. In his confession he said nothing of the purpose for which he entered the room, or of any permission to enter, or of any business or duty which he had to perform therein. Nor was there any evidence from any source tending to show that he had, or ever had, permission or was under any duty or had any right to enter. In his statement to the court and jury at the trial, he said, in substance, that it was his regular business to clean up, or assist in cleaning up, the room; and that on this occasion he went in for that purpose, took the pants, then locked the door and hung up the key. He offered no testimony to support his statement or to controvert the evidence against him. He made no mention of the coat or the vest.

One ground of the motion for a new trial complains that the, court charged the jury thus: “If, however, the entering was lawful, if he had a right to go in there, and went in there by permission of the owner or permission of the person who had authority to send him in there; if he was directed, for instance, to go in there and clean up the room, if he was directed to go in there and open it, and went in there for a lawful purpose, and went in by permission of the owner, and after being in there, stole, that would not be burglary, but larceny from the house.” This charge was certainly not erroneous as against the accused. True enough there was no evidence on which to base it, but the bearing of the instruction was wholly in his favor; for it suggested to the minds of the jury hypothetically a state of things which might by conjecture reduce his offence from burglary to larceny from the house. Had the jury been prompted by an irrelevant charge to go out of the evidence to frame a theory against him, he would have had cause for complaint; but to put them on conjecture for extenuating or mitigating facts, when none whatever appeared in the evidence, was helpful rather than prejudicial to his case. Besides, there was some warrant for the charge in the contents of the prisoner’s statement.

Another ground of the motion makes complaint that the court charged the jury in these terms: “I charge you, if the defendant asserts that he went in by permission of the landlady, it is his duty to make it appear,upon the State showing the room was broken and unlawfully entered and that the defendant did it — that it was unlawfully entered by the defendant by taking the key and opening the door; and if the defendant sets up that he went in there by permission of any one who had a right to give it, that it is his business to make it appear.” Had the State adduced evidence from which defensive facts appeared or could be inferred, this charge might have been open to criticism. Crawford v. The State, 12 Ga. 142; Mitchell v. The State, 63 Ga. 222. But such was not the case. Nothing proved by the State tended to show that the accused had permission to enter the room for any purpose. On the contrary, Mr. Banks, the occupant, testified that this boy had been anxious to come into the room and clean it up, and had come to him several times, and that he, Banks, had notified the landlady not to let him go in. Nor was the charge set ont in this ground of the motion given whilst the court was instructing on the prisoner’s statement made to the-court and jury at the trial. It was given while expounding the law applicable to the case generally, that is, in its relation to verification by evidence. In a previous portion of the charge the statement had been dealt with by the court as follows: “A defendant in all criminal cases is entitled to make a statement. The defendant in this case has made a statement; that statement is not. evidence, and not under oath, but still the jury under the law are authorized to take it just for what they think it is worth; they can receive it all as true if they want to; they can accept it, if they see fit, in preference to the sworn evidence, or you can reject it all or accept it all; you can deal with it just as you think in your judgment and opinion it is entitled to be dealt, with.” So far as appears, there was no request for any special instruction touching the statement. We think this is a case in which there was no danger of the jury overlooking the statement, and that they must have been aware that they could and should give it credit if they believed it true. Their verdict vouches for their unbelief.

The guilt of the accused to the extent of larceny from the house was undisputed; and with his statement discredited, he was guilty, according to strict law, of burglary. Technically, to open a locked door with the owner’s key, is a sufficient breaking, though the key be left within the reach of every comer, and prove a temptation to the dishonest by affording easy opportunity to commit larceny. In the present case, the intent with which the accused used the key and entered the room grades his offence as between felony and misdemeanor. If the intent to steal was formed after he entered, his offence was larceny from the house; and inasmuch as the goods stolen were not equal in value to $50, the punishment for stealing them might be fined not more than $1,000, impi’isonment in jail not more than six months, and confinement at labor in a chain-gang not exceeding one year. If the intent to steal was formed before entering the room, his offence was burglary, and he could be imprisoned at labor in the penitentiary for a term not less than one year nor more than twenty years. The j ury having found him guilty of the latter, and the finding being based on sufiicient evidence, he must be treated as a felon, though the moral elements involved in his conduct, and most of the physical elements, are exactly the same as those appertaining to larceny from the house. The precise time when one of the criminal elements, to wit intent to steal, originated, may seem a small matter, but the law in its wisdom attaches to it important consequences. "Where, however, as in this case, no violent breaking occurs, but the means of entry are the same with which the owner of the house would himself effect ingress, the burglary is, in part, constructive only, and that consideration should ordinarily have weight in fixing the punishment. Within the limits of his legal discretion, the right and power of the trial judge to be more or less tender in every case, according to its actual facts and circumstances, cannot be doubted. in no case can the dictates of mercy be overlooked or forgotten. Mercy has always been a judicial attribute. Its function its not to withdraw justice or withhold it, but to measure it. Certainty of punishment, rather than severity, is the most potent factor in the repression of crime. Whether tested by principle or practice, discreet moderation is better than extreme rigor. The temper of government, as manifested through the judiciary, should be always firm, but never fierce. Judicial ferocity has been rare in modern times, and we are glad to say, is unknown by experience in Georgia. Society demands protection, but does not thirst for vengeance. The vicious are to be restrained, but suffering should never be inflicted by the public authority beyond what is necessary for this purpose. If society could be safe and prosperous without chastising its unruly members, it would have no right to punish at all. In so far as human punishment is without necessity, it is without justification, no matter who maybe its author or its minister. These general observations are made in order to disclose and render fully intelligible the spirit in which the direction which we give in the present case has been conceived. After a careful study of the facts and circumstances of the case, we are impressed with the apparent disproportion between them and the long term of imprisonment in the penitentiary which the sentence pronounced upon the plaintiff in error imposes, that term being thirteen years. We are mindful that this disproportion may be only apparent and not real, for local conditions of which the record affords no information, and with which we are or may he unacquainted, may materially affect the question. Nevertheless, when in a criminal ease of which this court has acquired jurisdiction by writ of error, the sentence looks unduly harsh on its face, it is our privilege, and in this instance we deem it our duty, to invite a reconsideration of it by the judge who pronounced it, and to do this by way of direction as provided for in sections 218, 4284, 4285 of the code. We trust our upright and able brother of the circuit bench will believe that we, like himself, act from conscientious views of duty, and in no spirit of censure or criticism, official or personal. We should ■deem ourselves unworthy to preside in this high tribunal if either the wish to offend, or the fear of offending, could mix with the motives of our judicial conduct. This disclaimer would <be needless, were it not very rare in practice for this court to give express direction that a prisoner legally convicted be resentenced. The only instance known to ns is that reported in 53 Ga. 195, the case of Jackson v. The State, in which the language of the court was as follows: “For these reasons we affirm the judgment, though we will direct that the judge re-sentence the prisoner, and in so doing, exercise the discretion vested in him by law in cases where the conviction is founded solely on circumstantial evidence. "We do not suggest what his sentence shall be, but we leave it open to the judge, now that some time has elapsed,, to commute the punishment if, as his conscience is at present informed, he thinks that course most consistent with justice, the public interest, the fallibility of human belief, and such charity as is consistent with justice.”

The direction we give in the present case is expressed in the third head-note, and its terms will be certified by the clerk to the superior court of Bibb county in accordance with section 4285 of the code.

Judgment affirmed, with direction.  