an indictment for burglary with intent to commit rape, the alleged intent is a material and substantive fact to be proved to the satisfaction of the jury, as much so as any other material allegation in it; and they must be satisfied, from the facts and circumstances attending it, that the breaking and entry was made by the prisoner with the intent to commit the alleged rape with force, and against the will of the party named.'

(b) Admissibility and sufficiency.'-Felonious intent is to be determined by the jury from all the facts and circumstances, and the statement of defendant, charged with having burglariously entered a dwelling-house through a cellar, that he fell into the cellar, should be considered, in connection with the other evidence, with such credence as the circumstances permit. Proof of the larceny of goods from the building entered is competent evidence of the intent with which defendant broke and entered; and where the entering is clearly shown the jury may infer an intent to commit a

informed a constable and others, of the same, giving the names of all the persons concerned, and of the time and place of the proposed crime, and requested the constable to take steps to have the other defendants arrested, and that he accompanied his co-defendants to the place assigned, and seemingly participated with them in their acts, and that on the following morning he gave such full information of the affair as led to the arrest of the parties. The jury found all the defendants guilty. Held, that, under the facts of the case, the conviction of the party giving such information, and who claimed to have acted as a detective, could not be sustained.-Price v. People, supra.

1 State v. Carpenter, 1 Del. Cr. 367. R. was indicted for feloniously and burglariously breaking and entering, in the night-time, the dwelling-house of one M., with intent the goods and chattels of M., then and there being, feloniously to steal, take and carry away. At the trial, R. offered to prove that M. was a lewd woman, and that he had had improper intimacy with her, which the court below refused to admit. On exception - Held, that, as one of the elements essential to constitute the crime of burglary is the felonious intent with which the breaking and entry of the house may have been effected, it was very material to show for what object R. broke and entered the house; and that, if he entered the house solely for the purpose of having illicit connection with M., he could not be found guilty of burglary. - Robinson v. State, 53 Md. 151.

See supra, § 154.

People v. Griffin, 77 Mich. 585.

4 Stokes v. State, 84 Ga. 258; State v. Moore, 12 N. H. 42.

larceny.' It may be shown that a larceny was committed, although the fact has not been averred, nor have the articles stolen been specified. The evidence is admissible on the question of intent.' Where a party broke into a house in the night-time, and cut a servant girl on the neck and face with the intent to kill her, it may be fairly presumed that he entered for the purpose of killing her.' In New Hampshire, however, in an early case, where an actual stealing was charged in an indictment for burglary, it was held that proof of an intent to steal was not sufficient."

(c) Facts and circumstances as proof of intent.—The intent with which the building was broken into may be determined from facts and circumstances; such as circumstances tending to show that a felony was committed in a store adjoining." So also, evidence of previous preparations by defendants to

1 Burrows v. State, 84 Ind. 529; State v. McBryde, 97 N. C. 393. Allen v. State, 12 Lea 424.

3 State v. Manluff, 1 Del. Cr. 208.

4 Jones v. State, 11 N. H. 269. Two men jointly committed a robbery and fled together, but were caught separately. Held, upon the trial of one for burglary, that evidence that money was taken from the other was admissible.-Allen v. State, 12 Lea 424. On an indictment for burglary with intent to steal, it was shown that defendants C. and M. went to a store in the night-time, and that M. entered it while C. remained outside. M. was arrested near a safe, and near him was found a drill for boring steel, which it was proved that C. had purchased that day. Held, that the evidence was sufficient to show an intent to steal.-People v. Morton, 4 Utah 407. Where the testimony showed that the accused, about four o'clock in the morning, had raised the window in the dwelling of an aged lady, and was holding it up with his hand in such a way that his fingers were within the house, his elbows resting on the sill of the window, his body outside of the house, when some of the inmates hearing the noise and approaching, he suddenly dropped the window and fled, there being valuable property in the house, and no excuse being given or other known object; - Held, that such entry and the circumstances were sufficient from which the jury might find the felonious intent; and that their verdict of guilty would be supported.France v. State, 42 Tex. 276. Evidence that a man entered a bedroom through a window late at night after the lamps were extinguished, seized a woman by the throat, threw himself across the bed, and fled upon an outcry,-Held, to justify a finding that his intent was to commit a larceny; although she testified that she believed his purpose to be sexual intercourse. -People v. Soto, 53 Cal. 415.

See supra, § 155.

State v. Teeter, 69 Iowa, 717.

↑ Osborne v. People, 2 Parker, 583.

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commit a robbery on the owner of the house is admissible, as tending to show with what intent the entry may have been made.' No other motive appearing for an attempt at burglary near midnight, the intent to steal may be inferred, there being valuable effects in the building. On the trial of an indictment for breaking and entering a dwelling-house with intent to commit a rape, the effects of the alleged violence upon the person of the female may be proved. And on trial of two for burglary, evidence that one of the defendants proposed to the witness, in the absence of the other defendant, to obtain money through witness, from the county treasury, in which the burglary was committed, is admissible, where it is shown that the proposition was renewed by both defendants, and where there was evidence tending to show that their conduct on those occasions was part of a conspiracy to induce the witness to aid them in robbing the treasury. So, upon a trial, where the crime charged was burglary committed by the prisoner when so armed as to indicate violent intentions, the fact that the prisoner was so armed when he left the house where the burglary was committed was sufficient evidence to justify the jury in finding that he was so armed when he committed the crime."

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§ 355. Proof of ownership, or inhabitancy.-To sustain an indictment for burglary in a dwelling-house, it must be proved that some one lived in the house. But on the trial of an indictment for burglary in breaking and entering a storehouse, parol evidence of possession under a written lease is

1 State v. Cowell, 12 Nev. 337.

2 Steadman v. State, 81 Ga. 736. 3 Com. v. Doherty, 10 Cush. 52. 4 Fort v. State, 52 Ark. 180.

5 State v. Morris, 47 Conn. 179.

Fuller v. State, 48 Ala. 273. In burglary, the tenure by which the occupier holds the premises is immaterial. An indictment alleged the ownership of a storehouse broken into to be in A. and B. It was proved to have been the property of A., but that he and B. carried on mercantile business in it, and owned the goods kept therein for sale. The court charged that if A. and B. were doing business in the house at the time it would be a sufficient ownership. Held, correct. -White v. State, 49 Ala.

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sufficient without the production of the lease.' To warrant a conviction for burglary in breaking into a smoke house, under a statute punishing "breaking open the house of another,” the proof must show that the building entered was so connected with a dwelling-house as to be, in law, a part of it. The word "house" in such a connection should be construed as meaning only a mansion or dwelling-house, and buildings immediately appurtenant. Under an Under an information which charges a breaking and entry with intent to steal the goods of B., no conviction can be had without proof of such particular intent. But where it appeared that B. was the owner of the house at the time, and had personal property therein, which might be the subject of larceny, and which was in the same room with property of C., and was stolen and carried away at the same time with the latter, it was held that the state might show that the property of C. was afterwards found in defendant's possession.'

§ 356. Presumptive and circumstantial evidence- -(a) Presumptions. While it is not a presumption of law that a felonious breaking into a dwelling-house was committed in the night rather than the day, yet the fact that a store was left closed and with goods in it at sundown, and was found the next morning broken open and the goods gone, raises sufficient presumption of burglary at night. One who burglariously enters a dwelling noisily is presumed to have intended to rob rather than to commit a simple larceny." Where the

1 Houston v. State, 38 Ga. 165.

Palmer v. State, 7 Coldw. 82.

* Neubrandt v, State, 53 Wis. 89. Personal property of a boarder left in B.'s saloon or bar-room during the night, while the boarder slept in some other part of the house,-held, to have been in the actual possession of B. during that time; and, under Wis. Rev. St. § 4621, that proof of the intent to steal such property would sustain an averment of an intent to steal the property of B.-Neubrandt v. State, supra. An instruction that the burglary "could not be inferred" from the fact that the stolen property was found in defendant's possession,—held, properly refused, where there was proof, not only that the property was so found shortly after the burglary, but also of other suspicious circumstances.-Id.

4 State v. Whit, 4 Jones 349. Brown v. State, 59 Ga. 456. Lowe v. State, 14 Lea 204.

breaking and entry are proven, and it is shown that defendant was identified while in the house, and his intent to commit a felony is established by presumptions of law arising on the facts in the case, the evidence is sufficient to sustain a verdict of guilty.' And where it is proved that the door had been forced open, the jury may infer that it had been previously shut."

(b) Competency of circumstantial evidence, generally. The value of corn taken by breaking a corn-crib may be proved by circumstantial as well as by direct evidence.' And evidence upon the question of guilty or not guilty of a burglary charged is competent to prove the attempt to commit it. So, on a trial for burglary alleged to have been committed in the apartments of one of several tenants who occupied the same building, the wife of the complainant may properly testify that she had latched the door when she left the room, about fifteen minutes before she returned and discovered the accused; that the hall door was also latched when she saw it about ten minutes previous, and that both doors were generally kept closed.' But evidence that a third person wanted to borrow money to be repaid in corn (the article stolen), is hearsay and inadmissible.

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(c) Its weight and sufficiency.-Evidence that a store was entered and money stolen at a particular time; that a few minutes before defendant was seen standing on the street looking into the store; that he was soon seen coming out of the store; that he was arrested, and money of the same denomination as some that was lost, and which, together with money found on the

1 State v. Fox, 80 Iowa 312.

2 Com. v. Merrill, Thach. Cr. Cas. 1.

3 Miller v. State, 77 Ala. 41.

4 People v. Lawton, 56 Barb. 126. People v. Bush, 3 Parker, 552.

State v. Clary, 24 S. C. 116. On the trial of an information for breaking and entering a store on the night of November 2, 1884, if other evidence showed that defendant, together with another who had been convicted of the same crime, occupied a rented room both before and after the commission of the crime, and were seen together about seven oclock on the evening of November 2, 1884, evidence that defendant was seen in company with the same person on October 25, 1884, is inadmissible.— People v. Burns, 67 Mich. 537.