
    WHAT CONSTITUTES AN INHABITED DWELLING HOUSE.
    [Circuit Court of Hamilton County.]
    William E. Mason et al v. The State of Ohio.
    Decided, March 11, 1905.
    
      •Criminal Law — Trial for Burglary — Under Section 6835 — Meaning of the Words “Inhabited Dwelling House” — Charge of Court — Recommendation of Mercy.
    
    1. In a trial under an indictment charging the malicious andi forcible breaking ar entering into an inhabited dwelling house in the night time with intent to commit a felony or with intent to steal property of any value, it is error to charge the jury that a dwelling occupied by a family who were absent in Europe at the time of the alleged burglary and the two servants left in charge were temporarily absent, was an inhabited dwelling house within the meaning of the statute.
    2. Although it is the duty of the court to instruct the jury as to the to do does not constitute prejudicial error where the court is not effect of a recommendation of the prisoner to mercy, a failure so requested to so instruct.
    Jelke, P. J.; Swing, J., and G-iffen, J., concur.
    The plaintiffs in error were indicted and convicted for the burglary of an inhabited dwelling house, and now complain that the court of common pleas erred in its charge to the jury by stating, in substance, that a dwelling house, although not at the time of the burglary occupied by any human being, was nevertheless an inhabited dwelling house within the meaning of the statute.
   That the court erred in charging the jury that they might recommend mercy without also stating the effect of such recommendation.

Section 6835, Revised Statutes, under which the prisoners were indicted, provides as follows:

“Whoever, in the night season, maliciously and forcibly breaks and enters in an inhabited dwelling house with intent to commit a felony or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury, shall be imprisoned not more than thirty years nor less than ten years.”

The object and purpose of imposing a penalty so severe as imprisonment for life manifestly is for the peace, repose and safety of familes in the night season, who are occupying a dwelling house, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding people give up to rest, would naturally cause alarm, distress and danger.

At the time of the forcible breaking of the dwelling house in this case, it was occupied by no human being, the owner and his family being absent in Europe, and the two servants left in charge being temporarily away on an errand.

The alarm and danger of the occupants of the dwelling house could not occur for the reason that none was there; but it is suggested that it is the possibility of the dwelling house being occupied at the time or of the occupants returning before the burglar had escaped, which the statute contemplates. But it is a well recognized rule of law that penal statutes are strictly construed. By a liberal construction, a dwelling house may be deemed to be inhabited when one or more human beings are living in it continuously during the night season as well as the day, although the occupants may be absent for a few hours during any particular day, but a strict construction requires us to have regard to the mischief intended to be remedied. The Legislature evidently intended to protect .those dwelling in the house at the time the burglary is committed, and not those who might be there by reason of its being their usual place of abode.

P. S. PhilUps and Wm. Sander, Jr., for plaintiffs in error.

H. M. Bulison, Prosecuting Attorney, and Arthur Mmning, Assistant Prosecuting Attorney, for defendant in error.

This construction of the word “inhabited” was applied in the case of The People v. Butler, 16 Johnson’s Reports, page 202, where the court say:

“By the addition of the word ‘inhabited’ in the first section of the act, the Legislature evidently intended to make a distinction between the act of burning a dwelling house while persons were actually in it at the time, and burning an uninhabited dwelling house. The one offense being punishable with death, and the other with imprisonment.”

In that case, the extreme penalty for the burning of an inhabited dwelling house was imposed, not because of the loss of the building or of the furniture and other contents, but because of the danger to the persons actually in it. So in this case, imprisonment for life is imposed, not because of the breaking of the building or the loss 'of any of its contents, but rather to protect those who are at the time occupying the premises. It is true that afterwards the Legislature of the state of New York amended this statute so as to read: “The dwelling house of another in which there is at the time a human being,” but this seems to have been done for the purpose of making certain, by statute, that which before was uncertain and determined only by judicial construction.

We are of opinion, therefore, that the court erred in its charge to the jury.

Concerning the other alleged error, it is the duty of the court to instruct the jury upon all the questions of law arising before them in the case, but a failure to instruct upon any particular point does not constitute prejudicial error unless the court is requested to so charge. While we think that the jury could not intelligently recommend the prisoners to mercy without knowing the effect of such recommendation, and that it is the duty of the court to so instruct, yet there being no request in this case, it was not error for which the judgment could be reversed. -

Judgment reversed, and cause remanded for new trial.  