Opinion
4 Div. 370.
June 7, 1945.
Appeal from Circuit Court, Coffee County; C. C. Brannen, Judge.
J. W. Hicks and Harry Adams, both of Enterprise, for appellant.
A mere scintilla of evidence, in view of the presumption of innocence, is insufficient on which to base a conviction. There must be substantial evidence to prove all elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Randolph v. State, 100 Ala. 139, 14 So. 792. The burden was upon the State to prove that the act was done with the requisite specific intent, by some overt act. Simpson v. State, 81 Fla. 292, 87 So. 920; 16 C.J. 529; 12 C.J.S., Burglary, § 55, p. 731; Davis v. State, 22 Fla. 633. It was error for the court to refuse to withdraw the case from the jury on account of the improper argument of the solicitor. The testimony contains no mention as to whether defendant was black or white. Cross v. State, 68 Ala. 476. The prejudice aroused was not eradicated by the instructions of the court, which is borne out by the verdict rendered. Hawkins v. State, 22 Ala. App. 384, 115 So. 857; Mitchell v. State, 22 Ala. App. 300, 115 So. 149; Whitfield v. State, 21 Ala. App. 490, 109 So. 524.
Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
The action of the trial judge cured any error committed by the Solicitor in his argument to the jury, if any error there was. Canty v. State, 238 Ala. 384, 191 So. 260; Burkett v. State, 215 Ala. 453, 111 So. 34; Mandell v. State, 21 Ala. App. 404, 108 So. 635. Breaking into house with intent to steal or commit a felony is the gravamen of the offense of burglary. It is not requisite that the intended act be consummated. Wicks v. State, 44 Ala. 398. Nor is it required that the consummated act be designated as having been committed with felonious intent. The doing of the criminal act under such circumstances is regarded as conclusive of the felonious intent. Wolf v. State, 49 Ala. 359; Barber v. State, 78 Ala. 19. In presenting his case to the jury the solicitor was well within his rights in referring to the races of the parties involved, in the manner in which he did refer to them, for the intent of the defendant, being a mental operation, could only be dealt with by inference. Pumphrey v. State, 156 Ala. 103, 47 So. 156; Richardson v. State, 23 Ala. App. 260, 123 So. 283. The general charge should never be given when there is any substantial evidence, however weak and inconclusive, tending to make a case against the party who asks it. Brown v. State, 30 Ala. App. 5, 200 So. 637; Id., 240 Ala. 648, 200 So. 640.
Appellant was tried and convicted in the Circuit Court of Coffee County (Enterprise Division) for the offense of burglary in the first degree, and his punishment fixed at imprisonment for life in the penitentiary. From the judgment of conviction and sentence, he prosecutes this appeal.
There were no objections interposed to the introduction of any testimony during the trial of the case, the salient features of which were that while Mrs. Ruby Rowe was visiting her daughter, Mrs. Huey, who lived close by, defendant entered her home on the night of November 19, 1944, while another daughter Mary Sue Rowe was at home. Miss Rowe en route to the show advised her mother and sister that she heard someone in the kitchen, and some ten or fifteen minutes later Mrs. Rowe and Mrs. Huey went to the house, and defendant was discovered in the hallway near the kitchen. At the time he was taken into custody, he had a dagger in his pocket, and the weapon is before us as an exhibit.
Section 85, Title 14, Code, provides:
"Any person who, in the nighttime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house, or any other house or building, which. is occupied by any person lodged therein is guilty of burglary in the first degree, and shall on conviction be punished at the discretion of the jury, by death or by imprisonment in the penitentiary for not less than ten years."
It is not denied in the record but that a serious charge was committed in violating the sanctity of an inhabited dwelling with the evident intent to steal or to commit a felony. Breaking into the house with the intent to steal or commit a felony is the gravamen of the offense of burglary; and it is not required that the intended act be consummated. 1 Whart.Cr.Law, 8th Ed., section 818; Wicks v. State, 44 Ala. 398; Wolf v. State, 49 Ala. 359; Barber v. State, 78 Ala. 19.
The three written charges, affirmative in their nature, were refused to appellant without error.
We cannot say that the argument of the solicitor to the jury was so objectionable as it could not be eradicated by instructions of the court. The court did all that was necessary to correct the argument, and place the jury in position to consider the case properly when defendant's objection was sustained and the solicitor's statements excluded from the jury. Burkett v. State, 215 Ala. 453, 111 So. 34; Canty v. State, 238 Ala. 384, 191 So. 260.
Finding no reversible error in the record, the judgment and sentence of the lower court must be affirmed.
Affirmed.
All the Justices concur.