BURGLARY - FELONIOUS INTENT NECESSARY.

McCOURT v. PEOPLE.

[64 N. Y. 583.]

In the New York Court of Appeals, 1876.

M. with two Companions stopped at C.'s house and asked C.'s daughter, who was alone at home, for a drink of cider, offering to pay for it. She refused, and M. thereupon opened the cellar door, though forbidden to do so by her, went in and drew some cider, He had procured cider there before, and on this occasion was partly intoxicated. Held. that he could not be convicted of burglary and larceny.

ERROR to the General Term of the Supreme Court, in the Third Judicial Department, to review a judgment of the Court of Sessions in and for the county of Essex, entered upon a verdict convicting plaintiff in error of the crime of burglary and larceny.

The indictment contained three counts: First. Burglary in the second degree. Second. Burglary in the third degree. Third. Larceny. The intended crime charged in each count was to steal cider.

On the 30th of September, 1871, between eight and eleven a. m., plaintiff in error with his brother and another companion stopped at the house of the prosecutor, Hinckley Cole, who was then absent from home. The prisoner was partially intoxicated; he had before stopped at the house and procured cider. The daughter of Cole came to the door, and he asked her for some cider, offering to pay for it. She refused to let him have any. There were two doors to the cellar, one opening out, the other about eighteen inches distant opening into the cellar. The evidence on the part of the prosecution tended to show that the latter was shut and latched. The prisoner said he would have some cider any way, and started to go down cellar. Miss Cole forbade him, and ordered him to leave the premises, but he went on into the cellar and drew some cider in a pail. His brother followed him into the cellar, took the cider away, and succeeded in getting him away from the premises.

At the close of the evidence the prisoner's counsel requested the court to direct an acquittal. This the court refused and said counsel duly excepted. The jury rendered a general verdict of guilty.

Samuel Hand, for the plaintiff in error.

Nathaniel C. Moak, for the defendants in error.

ANDREWS, J. There was evidence authorizing the submission to the jury of the question whether the prisoner gained admission to the cellar by opening the door from the cellar way. This door was an outer door of the house. The fact that there was another door opening outwardly before reaching it did not make it an inner door of the house. Like a

storm door, the outer door was a barrier to the approach to the outer door of the house, and access to the house could not be obtained until the second door was opened. If, therefore, the prisoner in entering the cellar unlatched the door immediately communicating with it, there was a breaking and entry which would constitute burglary, provided the other constituent of the offense was made out, viz., that the prisoner entered with intent to commit a crime.1

The material question in the case is, whether the evidence justified the finding of the jury that the prisoner broke and entered the cellar with intent to steal cider therein, which is the intent charged in the indictment. The breaking and entry was not a substantive offense; and if the evidence was insufficient to show that it was done with intent to commit a larceny, the judge should have directed an acquittal. Every taking by one person of the personal property of another without his consent is not larceny; and this, although it was taken without right, or claim of right, and for the purpose of appropriating it to the use of the taker. Superadded to this, there must have been a felonious intent, for without it there was no crime. It would in the absence of such an intent be a bare trespass, which however aggravated, would not be crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury.2

Whether the criminal intent existed in the mind of a person accused of crime at the time of the commission of the alleged criminal act, must of necessity be inferred and found from other facts which in their nature are the subject of specific proof; and for this reason it is that the other constituents of the crime being proved it must ordinarily be left to the jury to determine, from all the circumstances, whether the criminal intent existed.

In some cases the inference is irresistible, and in others it may be and often is a matter of great difficulty to determine whether the accused committed the act charged with a criminal purpose. But there are usually found in connection with an act done which is charged to be criminal, attending circumstances which characterize it, and if these are absent, or the circumstances proved are consistent with innocence, a conviction can not be safely allowed.

In this case the accused entered the cellar without right and against the protest of the prosecutor's daughter, with intent to obtain a drink. of cider, and in that way to appropriate it to his own use and deprive the prosecutor of his property. So if in passing through the prosecutor's orchard he had, without the consent and against the will of the owner, picked from the ground an apple and eaten it, the act would meet the general definition of larceny, to wit, a

1 2 Rev. Stats. 668, secs. 13, 18.

1 Hale's P. C. 509.

taking of the personal property of another, without his consent, and appropriating it to his own use with design to deprive the owner of it. Larceny might be predicated of such a transaction, but if it appeared the act was done openly, in the day time, in the sight of the owner, a jury would not be called upon to convict; and the court might properly so advise them and direct an acquittal. In the case supposed the act would be a plain trespass, and the circumstances proved would be consistent with a design on the part of the accused to commit a trespass, and there would be an absence of circumstances usually accompanying a felonious taking.

In the case before us the accused was guilty of a rude and aggravated trespass. He persisted in entering the cellar to draw cider although forbidden to do so by the prosecutor's daughter. He offered to pay for it if she would furnish it. He had procured cider at this house before and he was partially intoxicated. But these circumstances were no justification of his act; the daughter had a right to refuse to give him cider and his offer to pay for it gave him no right to take it by force; and his intoxication, while it may to some extent account for his conduct, did not mitigate his offense or excuse his crime, if one was committed. But there was an absence of the circumstances which ordinarily attend the commission of larceny and which distinguish it from a mere trespass. There was neither fraud, stratagem or stealth. The value of the cider which he intended to take was trivial and the whole transaction was open, in the day time, and in the presence or within the observation and knowledge of the prosecutor's daughter. The People gave in evidence the declaration of the accused made a short time after the transaction, on the occasion of the settlement of the civil damages, in answer to an inquiry, what his object was in so conducting himself at the house, that he was "rum crazy; " and this was very likely the truth. There was not only an absence of the usual indicia of a felonious taking, but all the circumstances proved are consistent with the view that the transaction was a trespass merely. To find this transaction a larceny it is necessary to override the ordinary presumption of innocence and to reject a construction of the prisoner's conduct, which accounts for all the circumstances proved without imputing crime, and to impute a criminal intention, in the absence of the ear-marks which ordinarily attend and characterize it. The accused was convicted of burglary and larceny and was sentenced to two years in the State prison. There was not we think sufficient evidence to warrant the conviction, in that it did not justify an inference that the accused acted with a felonious intent.

We can not sustain the conviction without confounding the distinction between criminal acts and such as, however reprehensible, involve only

a violation of private right, and injuries for which there is a remedy only by civil action.

The refusal of the court to direct an acquittal was error for which the conviction should be reversed.

All concur.

Judgment reversed.

BURGLARY-POSSESSION OF STOLEN GOODS-INSUFFICIENT EVI

DENCE.

PEOPLE V. GORDON.

In the Supreme Court of Michigan.

1. Evidence Held Insufficient to convict of burglary.

2. Possession of a Satchel Containing Stolen Property, held, to have no tendency, in itself, to show one guilty of burglary.

Exceptions certified before sentence from the Recorder's Court of the city of Detroit.

Attorney-General Otto Kirchner, for the People.

Hawley & Firnane, for the respondent.

CAMPBELL, C. J. Defendant was convicted of burglary in the alleged nocturnal breaking and entering of the house of one Charles L. Stevens, in Detroit, and stealing a quantity of silver and other small articles therefrom. The only evidence connecting defendant with the offense was his arrest with a satchel containing the articles. The only evidence of the burglary was that the house, which was temporarily unoccupied, except by a brother of the owner sleeping in it, was entered through a window in the front; that a lamp which belonged in the kitchen was found unlighted in the front hall, and that a clock had stopped at five minutes passed eight and that its door had been opened and it was not run down.

This case was before us at the last October term, and some of the questions now before us were somewhat considered. It seems to us that some things which were then passed upon do not appear to have received full consideration on the second trial.

It appears from the evidence for the prosecution, that on the evening of the arrest, at a late hour, one O'Neil saw prisoner and two men named White and Hardy walking up Jefferson Avenue, and prisoner was carrying a satchel. This was near Third Street. He at once walked up Jefferson Avenue to Cass Street, three blocks, to notify a policeman,

No counsel named for defendant.

FREEMAN, J. This is an indictment, charging that defendant unlawfully, feloniously and burglariously did break and enter the mansion house of Margaret Mallon, in the night-time with the unlawful and felonious intent, then and therein, her, the said Margaret Mallon, unlawfully, forcibly, feloniously and against her will, to have carnal knowledge of, against the peace and dignity of the State, etc. The jury found the defendant guilty as charged and affixed punishment in the penitentiary for twelve years and six months. The facts shown are substantially as follows:

Mrs. Mallon, a widow lady kept a grocery store in Nashville in the front part of her house; her bed-room and kitchen were in the rear part of the building. On the day of the alleged offense the back doors of the house were open, as well as the windows, and remaining so until about ten o'clock at night. About this time she closed the front doors, went into the back part of the house, let down the windows, shut the doors and locked them on the inside, leaving the keys in the locks. She then went to her bed and moved it from the wall, in order to adjust the mosquito bar, when she felt the bed strike against something under it, which she then supposed to be a dog. She went into the front room, got a candle and returned. On looking under the bed she saw the defendant lying on his side with a large pocket knife open in his hand. She ran to the front door crying robber, asking for help, and giving a general alarm. Parties near by ran into the house when defendant went out at the back door, unlocking it, and fled. He was pursued and soon after captured. She had known defendant some years. He had been in front of the house eating watermelons in the evening with some other negroes and had been ordered away by her because of the dirt made by the party. He had been refused credit by her as she says, some three years before, when he replied, "he would get even with her yet." The house of Mrs. Mallon was situated in a thickly settled part of the city- other houses close to it.

It is clear from the testimony that defendant went into the house at an open door, and secreted himself under the bed, with the purpose we have no doubt, of committing some felony, but what that was to be we have no means of determining except such as are furnished by the above facts.

Burglary is defined by the Code1 to be breaking and entering into a mansion house by night with intent to commit a felony. This is substantially the common-law definition. By section 4674 it is provided that if any person who after having entered any of the prem

1 sec. 4672.