BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
ALVIN GILLUM was convicted of burglary of a dwelling under Mississippi Code Annotated 97-17-19 (1972), and sentenced to serve 7 years in prison. He appeals this determination of the Circuit Court of Hancock County, Mississippi.
Mr. and Mrs. John Highstreet of New Orleans, Louisiana, own a weekend home in Waveland, Mississippi. On the 19th of May, 1981, they were informed by their son that their Waveland house had been broken into. At about 11 o'clock A.M., on May 21, 1981, the Highstreets arrived at the Waveland house and found that it had been broken into. The kitchen was in a mess, with dirty dishes, pork chop bones, and a carton of ice cream, partially melted, on the table. In the kitchen sink was ground meat thawing. They discovered that several appliances, including a television and a clock radio, were missing. The deadbolt lock on their back door had been broken loose. The Highstreets contacted the local police and were advised to stay away from the house while an officer staked it out.
Officer Charles James of the Waveland Police Department staked out the Highstreet's home beginning about 11:50 a.m. the same day. At 2:30 that afternoon, he heard the back door open, drew his weapon and arrested the defendant in the kitchen. James recalled that some of the ice cream in the half gallon container was still frozen and that the hamburger meat had just started to" sweat ".
Two days later, several appliances were found in a vacant lot next to their home and a portable radio was found on the back patio.
Mr. Highstreet testified that his family tried to make it over to their Waveland home every two or three weekends. They spent the night there once every two or three weekends on the average, but live most of the time in New Orleans. They do not rent the house out but occasionally lend it to their neighbors. They have owned the Waveland house for eight years, and Mr. Highstreet agreed that it is fair to say that usually nobody stays there.
At his trial, Gillum moved for a peremptory instruction on the insufficiency of the proof to show that the house was a dwelling house because of the lack of regular habitation and for the further ground that there was no proof of intent to steal. The trial court did not grant the peremptory instruction. The trial court also declined to grant a lesser included offense instruction for trespass.
In the sentencing phase the state offered proof that the defendant had been arrested on three or four other breaking and enterings. After receiving oral and written sentencing reports, the trial court sentenced Gillum to seven years, recommending psychiatric counseling.
Additional facts and the trial judge's remarks during the sentencing phase will be presented under those assignments of error.
WILL A PROSECUTION FOR BURGLARIZING A DWELLING HOUSE LIE FOR THE BREAKING AND ENTERING OF A WEEKEND HOME?
Gillum was convicted under Mississippi Code Annotated 97-17-19 (1972), which provides:
Every person who shall be convicted of breaking and entering any dwelling house in the day
or night with intent to commit a crime shall be guilty of burglary and be imprisoned in the penitentiary for not more than ten years.
Dwelling house is defined in Mississippi Code Annotated 97-17-31 (1972), as follows:
Every building joined to, immediately connected with, or being part of the dwelling house, shall be deemed the dwelling house.
Our decisions make clear that more is required than that a house was built to serve as a place for human habitation in order for it to qualify as a dwelling. We held in Woods v. State, 186 Miss. 463, 191 So. 293 (1939), and Watson v. State, 254 Miss. 82, 179 So.2d 826 (1965), that such a building does not become a dwelling until the first dweller has moved in. By the same token, after a dweller has moved out with no intention of returning, the place is not a dwelling. Haynes v. State, 180 Miss. 291, 177 So. 360 (1937). The temporary occupancy of a room by a guest in a hotel is insufficient to qualify as a dwelling. Robinson v. State, 364 So.2d 1131 (Miss. 1978). Robinson states that the intention of the dweller is the material consideration and that a hotel room would be a dwelling if it is actually where a person permanently resides. Id. at 1134.
Gillum compares his situation to Scott v. State, 62 Miss. 781 (1885), wherein the owner of a building visited the place once or twice a year, remaining sometimes a week or less. While there, he slept and ate at the house and in his absence another looked after the place but did not sleep there. This Court said:
The building as described by the testimony was not a dwelling house in legal contemplation. To render a building a dwelling house, it must be a habitation for man, and usually occupied by some person lodging in it at night. A building which is in fact a dwelling house does not lose its character as such by a mere temporary absence of its inhabitants who have left with intent to return, but it does not become a dwelling house, though used for taking meals and other purposes, unless the person occupying it or some one of his family or servants usually sleep in it at night.
Id. at 782. Gillum argues that the Waveland house was too infrequently occupied to qualify as a dwelling according to Scott v. State, supra, in that Mr. Highstreet admitted that usually no one slept there at night and it was occupied only every other weekend at most.
The state points out that under Robinson v. State, supra, the intention of the dweller is the material consideration. The Highstreets had regularly used their Waveland home on alternate weekends for eight years, leaving food, clothing, and other necessities there. The state directs attention to our acknowledgment that a temporary absence does not destroy the character of a home as a dwelling if the dweller leaves with the intent to return. Scott v. State, 62 Miss. at 782. Haynes v. State, 180 Miss. at 297, 177 So. at 361.
The seasonal or intermittent use of a residence, according to the weight of authority, does not prevent it from becoming a dwelling. See 20 ALR4th 349, 9(a), pp. 367-70 (1983). The view that occupancy need not be continuous is likewise shared by many courts. Id. at 7(c), p. 365. A doubt as to one's intention to return coupled with long-continued absence, such as in Scott v. State, may be sufficient to destroy the character of a house as a dwelling, but such is not the case here. The frequency and regularity of the Highstreets' visits distinguish this case from Scott v. State. The presence of clothing, furniture, food and other amenities of life also lends credence to the position of the state that the house qualified as a dwelling under 97-17-19.
That a person may simultaneously have two dwellings, either of which would be subject to burglary under 98-17-19, does not establish a new principle of law. In the 1500's we find the following resolution by the English Court:
If a man have two houses and inhabit sometimes in one, and sometimes in the other, if that house in which he doth not inhabit be broken in the night, to the intent to steal the goods then being in his house, then this is burglary, although no person be then in the house.
Popham 52, 79 Eng.Rep. 1169 (1593). We do no violence to the statute or the case law in concluding that a person may simultaneously have two dwellings subject to burglary and sometimes reside with his family in one and sometimes in the other. The breach of one of them in the absence
of his family would still be burglary. This is not only in keeping with our law. It is in keeping with common sense and life in Mississippi in 1985. The law does not exist in a vacuum. This very Court is peopled with citizens who maintain more than one dwelling simultaneously, as are many branches of state government alone. To hold that the burglary of one of the dwellings of our citizens in these categories is not an offense against their habitation would not only be arbitrary and capricious but it would fly in the face of legislative intent and everyday reality. This we are not inclined to do. The law and common sense are not like east and west and occasionally, as here, the twain do meet.
There is no merit to the appellant's first assignment of error and prosecution for burglary of a dwelling will lie in circumstances such as these.
WAS THE PROOF INSUFFICIENT TO ESTABLISH INTENT TO STEAL?
Appellant points out that two essential elements of a burglary must be proven: An unlawful breaking and entering and an intent to commit some crime inside the subject building. Taylor v. State, 214 Miss. 263, 58 So.2d 664 (1952). It is conceded that we have frequently held that the existence of intent to steal may be presumed from proof of breaking and entering. Moseley v. State, 92 Miss. 250, 45 So. 833 (1908); Nichols v. State, 207 Miss. 291, 42 So.2d 201 (1949); Dixon v. State, 240 So.2d 289 (Miss. 1970). But Gillum asserts that it is unconstitutional for intent to steal to be presumed from proof of breaking and entering because the state has the burden of proof throughout to prove each element of the crime charged, not the defendant. Patterson v. New York, 432 U.S. 197, 215, 97 S. Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975); In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970).
In Dixon v. State, supra, the defendant was apprehended by the owner of a store after he broke and entered a window at the rear of the building at night. Dixon contended that the state failed to prove intent to commit larceny. This Court said the Mississippi rule was set out in Nichols v. State, supra:
Some presumptions are to be indulged in against one who enters a building unbidden, at a
late hour of night, else the burglar caught without boot might escape the penalties of the law. . . . People are not accustomed, in the nighttime, to enter homes of others, when asleep, with innocent purposes. The usual object is theft, and this is the inference ordinarily to be drawn in the absence of explanation from breaking and ...