Summary
In Bullock, a mother and son were awakened about 1:00 o'clock in the morning by a man who demanded to be let into their home.
Summary of this case from Ryals v. StateOpinion
No. 35260.
October 11, 1943.
1. CRIMINAL LAW.
In prosecution for attempt to commit burglary with intent to steal, while accused's drunkenness might be no defense, it was a factor in adjudging whether a definite intent to steal was present.
2. BURGLARY.
Where drunken accused had broken open at night a house door which had been fastened with wooden buckles, but there was no entry, and accused had no tools or weapons on his person and fled when shots were fired at him, accused was not guilty of an attempt to commit burglary with an intent to steal.
APPEAL from circuit court of Tallahatchie county, HON. JOHN M. KUYKENDALL, Judge.
A.L. Whitten, of Sumner, and Jackson, Young Friend, of Jackson, for appellant.
The court erred in overruling defendant's motion to exclude all of the testimony offered for and on behalf of the state and to direct the jury to return a verdict of not guilty.
Garland v. State, 130 Miss. 310, 94 So. 210; Gross v. State, 191 Miss. 383, 2 So.2d 818; Irby v. State (Miss.), 4 So.2d 881; Jackson v. State, 118 Miss. 602, 79 So. 809; Johnson v. State, 186 Miss. 405, 191 So. 127; Jones v. State, 172 Miss. 597, 161 So. 143; Loggins v. State, 161 Miss. 272, 136 So. 922; Ross v. State (Miss.), 42 So. 801; State v. Buchanan, 75 Miss. 349, 22 So. 875; Tate v. State, 193 Miss. 386, 9 So.2d 788; Taylor v. State (Miss.), 37 So. 498; Strother v. State, 74 Miss. 447, 21 So. 147; 9 C.J. 1009, Sec. 2 et seq.; Hughes on Criminal Law and Procedure, p. 305, Sec. 476.
Perhaps there is evidence of a breaking here, but there is absolutely no evidence of an actual entry or of an intent to commit the crime charged in the indictment.
The fact that the appellant in the case at bar knocked on the door and demanded entrance from the occupants of the house does not raise the presumption that he had the intent to consummate the crime of burglary. Such a presumption does not, as stated in the case of Johnson v. State, supra, necessarily or properly flow from the testimony offered in evidence. He could have had any other motive under the sun, lawful or unlawful. He was drunk and unarmed and there is nothing in the record to even indicate that he would have committed the crime laid in the indictment. He may be guilty of trespass, disturbing the peace or unlawful destruction of property, but surely it cannot be said that the evidence is sufficient in this case to convict him of the crime of attempted burglary.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The appellant was indicted under Section 793 of the Code of 1930. The only question presented in the case at bar is whether the evidence is sufficient to support the verdict. There is no conflict in the facts for the reason that the appellant offered no testimony in the case.
Counsel for appellant cites a number of cases pertaining to the crime of burglary and larceny but I deem it unnecessary to cite cases other than the case of Jones v. State, 172 Miss. 597, 161 So. 143, which case is also cited by the appellant. In this case, which is identical with the case at bar, the authorities are clearly and fully discussed. In this case the appellant was tried for an attempted burglary and convicted. The court held that the evidence was insufficient to support the verdict for the reason that the evidence presented by the State was to the effect that the appellant was discovered on the front porch of her home and was seen to pass the front door and go to a window and shake and rattle the window like he was trying to get in.
In the case at bar the appellant forcibly knocked the door down and was only prevented from entering the house by reason of the fact that he was shot. This clearly brings the case at bar within the holding of the opinion of the court in the Jones case, supra.
Counsel for appellant contends that it is not shown that the appellant entered the home. If he had entered the home, the crime of burglary would have been completed and he could not have been prosecuted for an attempted burglary.
Code of 1930, Sec. 794.
It is contended that the appellant was drunk and could not have had the intent to commit the crime charged. The answer to this is that the appellant offered no evidence whatsoever to this effect and this was a matter of defense and would have been a question if he was entitled to an instruction to this effect for the jury.
Edwards v. State, 178 Miss. 696, 174 So. 57.
The appellant's intent will be presumed in the absence of evidence to the contrary, and there is none such here, for the rule is that a man will be presumed, in the absence of evidence to the contrary, to intend the necessary or the natural and probable consequences of his voluntary acts.
Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; 16 C.J. 81; 1 Bishop's Criminal Law (8 Ed.), Sec. 735.
Theft being the usual object of burglary, a conviction under an indictment for burglary with intent to commit larceny will not be disturbed for want of affirmative proof of the intent, in the absence of evidence that the burglarious entry had a different object.
Moseley v. State, 92 Miss. 250, 45 So. 833.
Appellant was convicted of an attempt to commit burglary with an intent to steal. The acts on which the charge is predicated are the following: The owner of the premises, Mrs. Burt, testified that the defendant came to her home at one o'clock in the morning and awakened her "knocking at the back door." She roused her son, turned on a light, and demanded to know who was there. The defendant replied: "Open the door. I am coming in." The question was repeated with the same answer. Her son likewise demanded who he was, and the defendant replied: "Open the door and let me in." The son fired a pistol shot, whereupon the defendant went to a window "knocking at the house." The son then shot four times and called to others to help locate or apprehend defendant.
The defendant went away after the shots were fired, and despite his knowledge that the house was occupied and defended, he returned in about an hour. The son fired at him again and he fled. He was soon afterwards caught and explained that he did not know what he was doing. The town marshal testified that when he arrested the defendant he was drunk, and further that he was "a bad drinker" and had often been arrested for drunkenness. The door to the home had been fastened with wooden buckles and had been broken open by defendant. There was no entry. The defendant had no tools nor weapons on his person.
Upon this testimony the defendant was convicted of an attempt at burglary. If the conviction is to be affirmed as against the motion for a directed verdict, it must be sustained upon proof beyond all reasonable doubt that the defendant intended to commit the crime of larceny therein as charged in the indictment.
It is true that in Moseley v. State, 92 Miss. 250, 45 So. 833, it was conceded that "some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night," and it is reasoned that "the usual object is theft; and this is the inference ordinarily to be drawn, in the absence of explanation." Such generalization is quoted by the court from the decision of another state, and it must be assumed that the court was weighing mere inferences of fact upon which it justified a conviction in the light of the existing circumstances. This sort of inferences is usually the only material from which a jury may fashion its verdict, yet no rule of substantive law is thereby stated.
The circumstances in the instant case must furnish the only background for decision, and must be assayed with a view to determining whether there remain traces of reasonable doubt as to a larcenous intent. The facts are more nearly parallel to those in Jones v. State, 172 Miss. 597, 161 So. 143, where the defendant "rattled the window like he was trying to get in." This case, while stressing that a criminal intent implies a purpose and that such purpose may be proved circumstantially, nevertheless made prominent the requirement that such intent must be criminal and must be proved beyond all reasonable doubt. See 12 C.J.S., Burglary, Sec. 55, p. 732. The appellant here went further and committed an actual breaking, and in doing so displayed conduct that was more than merely anti-social, and, in any event, committed an artful and punishable trespass. While his drunkenness may be no defense, it must remain a factor in adjudging whether there was present a definite intent to steal. It is no condonation of the wanton and barbarous conduct of defendant to assert that while a larcenous intent could reasonably be inferred as a matter of logic, it may not be done as a matter of law. In reaching this conclusion we have curbed impulses ordinarily excited by suspicion and resentment, to which the jury must have succumbed.
Under the entire circumstances here presented, we believe there was no warrant to find beyond all reasonable doubt that the defendant was attempting to carry out a burglarious intent to commit the only crime which would justify conviction here, that is, an intent to commit larceny. State v. Buchanan, 75 Miss. 349, 22 So. 875; Irby v. State (Miss.), 4 So.2d 881.
Reversed, and appellant discharged.