¶1Defendant was convicted of the crime of burglary in the third degree, and sentenced to state’s prison for the period of three years. He appeals from the judgment, and makes a number of assignments of error. We pass by all except the last, which is that the verdict is contrary to law and is not justified by the evidence.
¶2In our opinion, the j udgment of conviction must be reversed,- as - wholly unwarranted. From the evidence it appears that the “Mon-ti cello Social Club” occupied a room in a building in the village of Monticello, fitted up as is the ordinary sáloon, in which liquors and cigars were sold or disposed of. One Allen was in charge, as the secretary of the club, and a man named Machtel slept in the room every night.
¶3Defendant, Biggs, 24 years of age, who had resided in this village all of his life, had been a member of this club up to a few hours before he was arrested on the charge of burglary. He seems to *461have then ceased to be a member, because the amount deposited by him had been “withdrawn” from time to time. He was in this room all of the evening, and was evidently drunk, and somewhat disorderly when Allen locked the front door, about 9 o’clock. Eiggs then went out the back door. Allen started towards his home, but, returning, lay down near the back door. Machtel was left in the room. He went to bed, leaving, as he said, the light turned partly down.
¶4What occurred subsequently was fairly stated by the court in its charge, in substance as follows: Eiggs came back with Hallett, a brother-in-law, and knocked at the back door. Both went away, and, returning together, Eiggs kicked or knocked a hole in the door. They then left, but soon afterwards Eiggs returned, and crawled into the room through this hole. Machtel then turned the light up, and Eiggs crawled outside. He soon knocked on the door again, Machtel opened it, and Eiggs stepped in, closely followed by Allen. The latter went for an officer, and Eiggs remained in the room until he was arrested, about 11 o’clock at night. It was shown that he was very disorderly while Allen was looking for an officer; that he had a revolver, shot into the floor, and made threats against Allen with whom he had had a previous difficulty. It was also shown that, upon leaving the room for the first time that evening, Eiggs, accompanied by Hallett, went to a. brother’s house near by, and there borrowed 50 cents for the avowed purpose of returning to the room for a bottle of whiskey.
¶5It seems to a majority of the court that a monstrous injustice was committed when, on this evidence, Eiggs was convicted of the crime of burglary. We are unable to find a particle of evidence tending to show that he broke into this building with an intent' to^ take, steal or carry away the money, goods or chattels of another person. He was drunk, and wanted more liquor. He had borrowed money with which to buy another bottle. He demanded that the door be opened, and then, in an ugly drunken mood, kicked in the door because his demand was not complied with. He knew that either Allen or Machtel, or both, were in the room, and if, as testified to by them, but denied by Eiggs, he crawled in through the hole in the door, it was not with an intent to steal.
¶6*462Burglaries are not attempted or committed in the manner indicated by this evidence, and the conduct of both Allen and Machtel shows conclusively that they did not for a moment suppose that Riggs was a burglar. Evidently they regarded him as a drunken rowdy, and, in that, they were right. He should have been punished as drunk and disorderly, not as a burglar.
¶7The judgment is reversed, and the court below ordered to dismiss the indictment and discharge the defendant.