Opinion
No. 34688.
June 9, 1941.
1. CRIMINAL LAW.
In felony cases, corpus delicti must be proved by evidence aliunde the confession of accused.
2. CRIMINAL LAW.
A confession which has been introduced may be considered with other evidence to establish the corpus delicti.
3. CRIMINAL LAW.
Where accused confesses, much slighter proof is required to establish corpus delicti than would be necessary where state must make out entire case unaided by a confession.
4. CRIMINAL LAW.
Where accused confesses, corroborative proof will be held sufficient which satisfies mind that it is a real and not an imaginary crime for which accused has confessed, and jury may find that defendant was guilty party on proof much slighter than that ordinarily essential.
5. CRIMINAL LAW.
The corpus delicti need not be proved beyond a reasonable doubt by evidence aliunde defendant's confession, but can be proved by preponderance of evidence or by evidence amounting to a probability, in which event confession will be received.
6. BURGLARY.
The essentials to prove the crime of "burglary" are a breaking and entering the building with intent to steal therein or to commit a felony (Code 1930, sec. 817, as amended by Laws 1940, chap. 243).
7. BURGLARY.
The word "breaking," within rule that to prove the crime of burglary there must be a breaking and entering of the building with intent to steal therein or to commit a felony, means any act of force, regardless of how slight, necessary to be used in entering the building, such as a turning of a knob or a slight push to further open a door or the raising of a latch (Code 1930, sec. 817, as amended by Laws 1940, chap. 243).
8. CRIMINAL LAW.
In burglary prosecution, evidence that heavy materials were removed from storehouse, and that such materials could not have been removed except through doors, and that no one who had a key entered the building, was sufficient, unaided by defendant's confession, to establish "corpus delicti" (Code 1930, sec. 817, as amended by Laws 1940, chap. 243).
9. CRIMINAL LAW.
Confessions should be received with great caution.
10. CRIMINAL LAW.
In burglary prosecution, confession which was freely and voluntarily made was admissible.
11. CRIMINAL LAW.
A finding that confession was freely and voluntarily made will not be disturbed unless it appears that such finding was manifestly contrary to weight of evidence.
12. CRIMINAL LAW.
Supreme Court would not pass on defendant's contention that it was error to admit proof, before jury, of finding by officer in home of defendant of a quantity of the kind of material removed from burglarized building where ruling of trial judge excluded such evidence, if such evidence actually was introduced in presence of jury (Code 1930, sec. 817, as amended by Laws 1940, chap. 243).
APPEAL from the circuit court of Hinds county, HON. J.P. ALEXANDER, Judge.
Maurice R. Black, of Flora, for appellant.
Appellant asked the court to instruct the jury not to consider the evidence which got to the jury in regard to finding certain incriminating evidence in his dwelling house; the court thereupon undertook to so instruct the jury, but in fact, by its instruction, left said evidence before the jury. The court told the jury not to consider a question as to what was found in the house, even though said question was not answered. The appellant submits that, from the record, no question was asked that was not answered by the witness, but that on the contrary two very objectionable questions were in fact answered before the jury; that the evidence so brought out was very prejudicial, and that it was not covered by the instruction to the jury as aforesaid.
The confession was inadmissible because the corpus deliciti had not been proved aliunde.
Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247; Miss. Digest, Crim. Law, Key, Nos. 517 (4), 535.
All of the witnesses for the state failed to testify to an actual breaking of the building in question. The extent to which the testimony for the state went was that the building had been locked one night and that at about 7:30 the next morning certain property was discovered missing. It is possible and even probable that some person slipped this metal out of the warehouse without breaking into the building. If this is true, the defendant could not be convicted of burglary without more evidence.
Stringfellow v. State, 26 Miss. (4 Cush.) 157, 1 Mor. St. Cas. 691, 59 Am. Dec. 247; Cases cited in Miss. Digest, Key No. 535 (1); State v. Calloway (La.), 199 So. 403; Little v. Commonwealth, 151 Ky. 520, 152 S.W. 569; Wallace v. Commonwealth, 162 Ky. 85, 172 S.W. 118; American Digest, Burglary, Key No. 41 (4); Griffin v. State, 111 Miss. 335, 71 So. 572; Gilford v. State, 115 Miss. 300, 76 So. 279; Ross v. State, 42 So. 801; Matthews v. State, 18 So. 683; 9 C.J. 1080, and Annotations; Sims v. State (Ga.), 127 S.E. 477; Strickland v. State, 12 Ga. App. 640, 77 S.E. 1070; Mosley v. State (Ga.), 174 S.E. 543; Tremble v. State (Ga.), 99 S.E. 544; White v. State, 51 Ga. 285; Green v. State, 68 Ala. 541; 1 Hale P.C. (Phila. 1847), 554; State v. McPherson, 70 N.C. 239, 16 Am. Rep. 769; Adkinson v. State, 64 Tenn. 569, 30 Am. Rep. 69; White v. State, 51 Ga. 285; State v. Wilson, 1 N.J.L. 439, 1 Am. Dec. 216; Sorenson v. U.S., 168 Fed. 785.
It is essential to show either an actual or constructive breaking into the house to constitute the crime of burglary. Not every entrance into a house by a trespasser is the breaking, and if a door or other opening in the house, such as a window, be open, and the thief enters, this is not breaking into it.
Frank v. State, 39 Miss. 705; George v. State, 183 Miss. 327, 184 So. 67; 2 Wharton's Crim. Law (12 Ed.), p. 1275, sec. 973; 9 Am. Jur. 241, sec. 4; 9 C.J. 1076, sec. 133.
The confession was inadmissible because the evidence for the state failed to show beyond every reasonable doubt that said confession was free and voluntary because it was proven that the arrest of defendant was unlawful because committed by an officer outside his jurisdiction.
Shirley v. State, 100 Miss. 799, 57 So. 221, 38 L.R.A. (N.S.) 998, Ann. Cas., 1914A, 252; Quan v. State, 185 Miss. 513, 188 So. 568; Acroyd's and Warburton's Case, 1 Lewin Crown 49; 307 Ill. 150; 80 N.Y. 484; 254 N.Y. 170 ; 252 Mo. 72; 2 Wharton's Crim. Evidence, 1024; Sylvester Thornton's case, 1 Lewin's Crown Cases, 49; Loftin v. State, 150 Miss. 228, 116 So. 435; Wohner v. State, 175 Miss. 428, 167 So. 622; State v. Fisher, 145 Miss. 116, 110 So. 361; State v. Warren, 164 So. 234, 174 Miss. 63; State v. Henry (La.), 198 So. 910; 20 Am. Jur., Evidence, par. 538; State v. Garvey et al., 25 La. Ann. 191; State v. Young, 52 La. Ann. 478, 27 So. 50; Bram v. U.S., 168 U.S. 532, 549, 18 Sup. Ct. 183, 42 L.Ed. 568; Ziang Sung Wan v. U.S., 266 U.S. 1, 45 Sup. Ct. 1, 69 L.Ed. 131; Self v. State (Tenn.), 6 Baxt. 244; State v. Drake, 82 N.C. 592; Wilson v. State (Tenn.), 3 Heisk. 232; Rex v. Kingston, 4 C. P. 387; Reg. v. Bate, 11 Cox C.C. 686; Reg v. Jarvis, L.R.I.C.C.R. 96; People v. Phillips, 42 N.Y. 200; People v. Barrie, 49 Cal. 342; Reg v. Cheverton, 2 F. F. 833.
A voluntary confession is one made spontaneously by a person accused of crime, free from the influence of any extraneous disturbing cause, and in particular, not influenced or extorted by violence, threats or promises.
State v. Clifford, 86 Iowa, 550, 53 N.W. 299, 41 A.S.R. 518; State v. Alexander, 109 La. 557, 33 So. 600; Com. v. Sego, 125 Mass. 213; Bullock v. State, 65 N.J.L. 557, 47 A. 62, 86 A.S.R. 668; Colburn v. Groton, 66 N.H. 151, 28 A. 95, 22 L.R.A. 763; Fisher v. State, 145 Miss. 116, 110 So. 361; State v. Guie, 56 Mont. 485, 186 P. 329; 20 Am. Jur. 420; Jordan v. State, 32 Miss. 382; Johnson v. State, 107 Miss. 196, 65 So. 218.
The presumption as to statements made when the defendant is in custody is that they are not voluntary.
Maki v. State, 18 Wyo., 481, 112 P. 334, 33 L.R.A. (N.S.) 465.
Geo. H. Ethridge, Assistant Attorney-General, for appellee.
No person was authorized by Mr. Harper to enter the building, and none of the people who had keys to his place of business entered it or took away the goods which were stolen. This, it seems to me, is manifest proof that there was an unlawful entry, and as the proof showed that the doors were not left open and that they were barred up and the property taken out by some method, the doors being intact when the witness Wright returned the next morning to the storehouse and opened it up, it was manifest that the babbitt and brass could not have gotten out of the storehouse without human help, and the proof shows that whoever took the goods out must have opened the door in some manner.
The turning of a key in a door or raising a window, or the opening of a closed door not locked, is sufficient to constitute a breaking within the meaning of the law of burglary.
The proof of the corpus delicti does not have to be proven beyond a reasonable doubt in order to admit a confession. While the law requires proof beyond a reasonable doubt to sustain a conviction, a confession legally made may aid the proof of the corpus delicti in making out the completed crime. Less proof is required to establish the corpus delicti when the confession of the defendant voluntarily made tends to prove the corpus delicti. However, the statement of the witness Bruton, which the court below and the jury were entitled to believe, was made voluntarily and is to be considered as evidence in the case. The connection of the defendant with the crime may be sustained by his confession alone when the corpus delicti is proven, but in the case before us it is not necessary to rely upon the confession alone to connect the defendant with it because he was found in possession of the stolen property, and this raised the presumption that he had participated in the burglary and in the theft of the property.
The appellant was indicted, tried, and convicted in the Circuit Court of Hinds County for burglarizing a storehouse located in the City of Jackson, the property of one R.W. Harper, and sentenced to a term of three years in the state penitentiary. From this conviction and sentence, he appeals.
The first contention is that the body of the crime was not proven aliunde the confession of the defendant. His contention in this respect is not free from doubt, but we have concluded that, under the proof in this record and the applicable rules of law, it is not well taken.
The building claimed to have been burglarized is a storeroom or warehouse used in connection with Harpers Foundry and Machine Shop in which is kept large quantities of babbitt and brass and other mill supplies used in the operation of the foundry. The building has five doors, and one large plate-glass window. The front door has a lock which automatically locks itself when closed. This may be unlocked from the outside. The other four doors are fastened from the inside by a piece of wood 2" x 4" in size, placed behind uprights across the door, or by steel spikes in the ends of the doors. These doors have no locks and must be fastened and unfastened within the building.
The proof shows that three persons had keys which would unlock the front door — Mr. Harper, the owner, Mr. Wright, the manager of the supply department, and Charlie Brown, the negro janitor. On the night of the alleged burglary, Mr. Wright fastened all of the doors, and locked the front door, between eight and nine o'clock. The janitor opened the building about seven o'clock the next morning, but did not notice that any of the materials had disappeared. Mr. Wright arrived shortly after seven o'clock; and when he went into the wareroom, he discovered that some seven hundred pounds of babbitt and eight hundred pounds of brass and some other material had been taken from the building. All persons who had keys testified that they had no knowledge of how these materials were removed, and that they could not have been removed except through one or more of the doors. The proof also shows that there were no signs of any breaking or that any door had been opened.
The defendant made a confession in which he said that he and one Kendrick, the night watchman at the foundry, had agreed that they would steal brass and babbitt and other material from this warehouse, and that on the night in question they did do that; that Kendrick inserted a piece of iron behind one of the doors and lifted the bar from the uprights on the inside of the door, and thereby opened it. The confession then details how the materials were taken from the building and hauled away, and where they were placed. The process of opening the door would leave no indication thereon of the method of doing it. The night watchman was familiar with all of the surroundings, and by replacing the bar and coming through the front door and closing it, left no sign or indication of the manner of entering the building.
It is true, as held by a long line of cases in this State, that in felony cases the corpus delicti must be proved by evidence aliunde the confession of the accused. Stringfellow v. State, 26 Miss. 157, 4 Cushm. 157, 59 Am. Dec. 247; Pitts v. State, 43 Miss. 472; Jenkins v. State, 98 Miss. 717, 54 So. 158; Rayborn v. State, 115 Miss. 730, 76 So. 639; Patterson v. State, 127 Miss. 256, 90 So. 2; Williams v. State, 129 Miss. 469, 92 So. 584; Garner v. State, 132 Miss. 815, 96 So. 743; Crabb et al. v. State, 152 Miss. 602, 120 So. 569; Pope v. State, 158 Miss. 794, 131 So. 264; Perkins v. State, 160 Miss. 720, 135 So. 357; Gipson v. State, 162 Miss. 480, 139 So. 868; Whittaker v. State, 169 Miss. 517, 142 So. 474; Yates v. State, 172 Miss. 581, 161 So. 147; Brooks v. State, 178 Miss. 575, 173 So. 409.
But it is also true that where the confession has been introduced, it may be considered with the other evidence to establish the corpus delicti. See cases cited above and also Keeton v. State, 175 Miss. 631, 647, 167 So. 68.
It is also the rule that: "Where there has been a confession by the accused, much slighter proof is required to establish the corpus delicti than would be necessary where the State must make out the entire case, unaided by a confession. Any corroborative proof in such a case will be held sufficient which satisfies the mind that it is a real and not an imaginary crime which the accused has confessed, and the fact that he was the guilty party may be found by the jury, on proof much slighter than that ordinarily essential." Heard v. State, 59 Miss. 545; Keeton v. State, supra.
In the case of Pope v. State, supra, the rule is announced in these words: "In order for the corpus delicti to be established by evidence aliunde the confessions, it is not necessary that the proof aliunde should show the crime or corpus delicti beyond a reasonable doubt, but it is sufficient to show it by a preponderance of the evidence or by evidence amounting to a probability, and then the confessions will be received, and, if the confessions coupled with the proof of the corpus delicti aliunde show the corpus delicti beyond a reasonable doubt, it is sufficient."
The essentials to prove the crime of burglary in this case were: (1) A breaking and entering the building, and (2) with intent to steal therein or to commit a felony. Section 817, Code 1930, amended by Chap. 243, Laws of Miss. 1940, p. 413. By breaking is meant any act of force, regardless of how slight, necessary to be used in entering the building — a turning of a knob, a slight push to further open a door, the raising of a latch — these and like acts are sufficient.
Applying the foregoing rules of law to the facts of this case, it is evident that the crime of burglary was committed. These were heavy materials; they could not have been removed except through the doors. The doors were fastened, and the proof shows, conclusively, that no one who had a key entered the building. Of course, it is possible that one might have been concealed inside of the building when the doors were barred and locked the night before, and removed from the building, during the night, these materials. But this borders upon the fantastic, viewed from a practical standpoint. From these facts, unaided by the confession, it is certainly within the range of probability that burglary was committed.
Appellant next contends that the confession was not admissible. Confessions should be received with great caution; but we have reviewed carefully the testimony in this record, and, based upon that testimony, the confession was free and voluntary. In such case the confession will not be disturbed "unless it appear that such finding was manifestly contrary to the weight of the evidence." Keeton v. State, 175 Miss. 631, 167 So. 68.
The appellant also contends that it was error to admit proof, before the jury, of the finding by the officer in the home of appellant of a quantity of babbitt when the officer went to his home with a warrant for his arrest, but without a search warrant. It is very doubtful if any evidence on this point was introduced in the presence of the jury, but, if so, we think the ruling of the trial judge excluded it. It is, therefore, unnecessary for us to pass on that question.
We find no reversible error in this record.
Affirmed.
Alexander, J., not participating.