person of one with him, corresponded in amount to that stolen, was found on his person,-is sufficient to convict him of the burglary. So, evidence that the door of the place alleged to have been entered was provided with a staple and a padlock, and that, when complainant came to the place after the alleged burglary, the staple was broken, was sufficient evidence that the door had been fastened.' But where, on an indictment for entering a room in a hotel, and lying concealed under the bed, for the purpose of rifling the occupant's pockets, the evidence is wholly circumstantial, and some of the circumstances tending to connect defendant with the crime are greatly weakened or overthrown by other evidence, and he establishes an unblemished reputation by witnesses whose testimony is not challenged, a conviction should be reversed."

1 State v. Jones, 19 Nev. 365.

2 People v. Block, 15 N. Y. Supp. 229.

3 Cavender v. State, 126 Ind. 47. It appeared that defendants entered a mill in the night-time through a basement window, and threw out some flour. The window was fastened with boards when the mill closed that evening, which were found broken off after the arrest, immediately after they came out of the mill. One of them told an officer after arrest that the other had kicked the boards off the window. Defendants claimed at the trial that they found the window open and went in to get the flour for a third person. Held, the evidence sustained a conviction.-People v. Robinson, 49 N. W. Rep. 260. The evidence showed that the stolen property, a saddle, was put in a barn on Sunday, and was missed the next Wednesday; that during that time horses were kept in the barn; that they could have escaped had the doors been opened; and that the doors were kept closed and latched in order to keep the horses in. Held, that there was sufficient evidence to justify the jury in concluding that the saddle had been stolen by means of "breaking and entering” the barn, though no witness swore positively that the doors were closed and latched all the time from Sunday to Wednesday.-State v. Warford, (Mo.) 16 S. W. Rep. 886. On trial of defendants for breaking into a calaboose and taking pistols therefrom there was evidence that the defendants, who were tramps, were seen climbing the fence that inclosed the calaboose, on the night of the crime, shortly before it was found broken open, and two prisoners liberated; that the coat of one of defendants was found in the city, near the railroad section-men's toolchest, which was broken open, and a pick taken therefrom, which pick was found in the calaboose. There was no explanation of defendants' presence in the calaboose yard. Held, that a verdict of guilty of burglary was sustained by the evidence.-State v. Turner, (Mo. Sup.) 17 S W. Rep. 304. Defendant entered a sleeping-room, and, upon the outcry of its occupant, was seen by an officer to run from the house with the occupant in pursuit, and enter the side door of a saloon. The officer demanded admission to the

(d) Acts and conduct of defendant and his accomplices.— Evidence that defendant was seen in the neighborhood on the day preceeding the night of the burglary; that he made inquiries about purchasing tobacco in a manner which showed that they were mere pretexts; that he apparently had some connection with two other strangers, is competent, in connection with the testimony of the owner of the house entered, that the defendant was there the same day, and that there were two engaged in committing the offense, although the defendant admitted that he was at the house that afternoon.' So, also, evidence that defendant had, the night before, and at various other times, been in the house broken into, that he had inquired as to the weapons in the house, and had said that he knew there was money in a safe in the house, is admissible. And on a separate trial of a joint indictment for burglary, evidence tending to connect the defendants in the commission of the crime is competent,-e. g., of their secretely consorting and consulting together. But, on admission of such evidence, rebutting facts must be allowed tending to show that the presence and participation of the other defendant was impossible.' But the refusal of a defendant charged

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saloon, which was denied, but defendant was immediately afterwards produced to him as the man who had last entered there. The officer and occupant of the broken premises both swore that this man was the one pursued to the saloon. Held, that the evidence against defendant was strong enough to justify submission of his case to the jury.-People v. Noonan, 14 N. Y. Supp. 519. On the trial of an indictment, under Code N. C. § 996, for feloniously entering a dwelling-house in the day-time, with intent to steal, the evidence showed that money had been stolen; that defendant had been frequently in the house; that he was seen about the place where the money was kept; that he was found concealed in the house; and that he had on his person a key that unlocked the drawer in which the money was kept. Held, that the evidence warranted a judgment of conviction.-State v. Christmas, 101 N. C. 749.

1 Com. v. Williams, 105 Mass 62.

2 State v. Ward, 103 N. C. 419.

3 Davis v. State, 19 Ohio St. 217. Prosecutor's house was broken open, and a gun, pistol and other articles were stolen. One M. had found the gun and pistol in the possession of some children, and defendant then said that they belonged to one H. who had tried to get him to pawn the gun for whiskey. M. then told him to carry them to H. When the articles were turned over to defendant the gun had but one hammer, and the pistol had no cylinder, but when defendant carried them to where H. was the

with burglary, to allow his house to be searched without a warrant for that purpose, is the assertion of a valuable and undoubted constitutional right, and can, in no case, be construed into a criminative circumstance. Such refusal is therefore inadmissible in evidence against the defendant.' So, also, upon the trial of defendants charged with burglary and larceny, testimony to the effect that the morning after the burglary they exchanged thirty-five copper cents for other money is irrelevant, when there is no charge in the indictment that they had stolen copper coins.'

(e) Flight. Evidence that about five minutes after a burglary was committed, on a moonlight night, defendant was caught running on a neighboring street, and brought to the scene of the burglary, and identified, by means of his hat and coat, as the man who was seen at the window, defendant giving no gun had two hammers, which circumstance defendant did not explain; and, on being asked where the pistol cylinder was, defendant took a cylinder from his pocket, which did not fit the pistol, but which, prosecutor testified, was stolen from his shop at the time of the burglary, and defendant gave no satisfactory explanation of his possession of it. H. denied that the articles belonged to him, or that he had ever asked defendant to pawn a gun for whiskey. Held, that a conviction was warranted.-Eubanks v. State, 82 Ga. 62. On a trial for the burglary of a dwelling-house, and stealing a watch therefrom valued at $8, defendant sought to explain the possession of the stolen watch, shortly after the burglary, by his own testimony that he had purchased it for $1, but he admitted that he had sold it for $1.25 on the day of the burglary. Held, that the haste with which defendant sold it, for much less than its value, tended to show that he did not purchase the watch in good faith.—Magee v. People, (Ill. Sup.) 28 N. E. Rep. 1077. Defendant was found guilty of burglary with intent to ravish a certain woman. The breaking and entering was clearly proved, it did not appear that defendant tried or intended to steal anything, and an intent to ravish was inferable from his conversation. The only women in the house were the one in question, who was a young white woman, and an old colored woman. Held, that the evidence supported the verdict.-State v. Powell, 94 N. C. 965.

1 Murdock v. State, 68 Ala. 567.

? State v. Dawson, 90 Mo. 149. On the separate trial of G. for burglary and larceny, for which he had been jointly indicted with B. and W., testimony of a woman that W., not in the presence of B. or G., asked her to stay at home on a certain night, hinting to her that he and B. were going down to a neighboring locality to commit a robbery, and that before daylight W. entered the house with a bloody hand, and said he had got hurt "down below here," and that G. and B. were with him; held, not to be admissible. [Bockes, J., dissenting.] People v. Gorham, 16 Hun 93.

reasonable explanation of his presence in the locality or of his haste, and making no attempt to prove an alibi, is sufficient to convict, notwithstanding strong evidence of good character.' So, evidence that defendant was seen by an officer at the broken premises, in company with two others, one of whom, when retreating upon the approach of the officer, dropped a saw and another article taken from the premises, the defendant also retreating behind the said premises, is sufficient to justify the submission of the case to the jury."

(f) Foot-prints.—Evidence that, early on the morning after a burglary, footsteps were traced from the barber-shop burglarized to a building in which the two defendants were found, apparently asleep; that part of the stolen goods were concealed in the building; that goods stolen from a store at the same time were concealed near the entrance of the building; that chisels were concealed therein, one of which fitted the marks made by forcing open the door of the barber-shop; that within two days before the burglary one of the defendants inquired of a bootblack of the barber-shop where he kept his money, and that on the day after the burglary one of the defendants told his young brother to go to a place where a part of the goods were afterwards found, and see if they were still there, is sufficient to sustain a conviction. So, evidence of the tracks of the burglar, supplemented by comparing the tracks of the prisoner made voluntarily in court, corroborated slightly by bits of paper found where the burglars had been, similar paper being in the possession of the prisoner, having resulted in a verdict of guilty, though leaving some doubt as to the identity of the prisoner with the burglar, will support the verdict on writ of error. And it is not error to permit a witness to testify that he measured tracks found at the place

1 Steadman v. State, 81 Ga. 736.

2 People v. Hagan, 14 N. Y. Supp. 233. It was shown that the stolen property was found near the respondent and another person, in a barn where they slept on the night it was taken, and that when the arrest took place the other person resisted and escaped. Held, that the resistance and flight might properly be commented on by the prosecuting attorney and considered by the jury.-Cummins v. People, 42 Mich. 142.

People v. Arthur (Cal.), 29 Pac. Rep. 126.

4 Gregory v. State, 80 Ga. 269.

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of the burglary, and also examined the shoe defendant had on just after the commission of the offense, and that upon placing the shoe in the track he found it to fit exactly.' But where, in a trial for burglary, the owner of the premises has described certain foot-prints to a witness, the witness should not be permitted to testify that the shoes of the defendant, produced on the trial, would have made such tracks. Where there is evidence that defendant had a defective foot, and that tracks made by the burglar showed a similar deformity, an instruction that the jury could not find defendant guilty from this fact alone is properly refused, as it singles out one criminating circumstance, thus tending to mislead and confuse the jury, and necessitating an explanatory charge. But on an indictment charging defendant with entering a mill and stealing meal, evidence that the morning after tracks were discovered from the mill to defendant's house; that the left shoe-track disclosed the plain impression of a heel-tap, which corre sponded with a heel-tap on defendant's shoe, it not appearing that the tracks otherwise corresponded; that defendant, when charged with the offense, and told to hold up his left foot, first held up his right, and when asked to make tracks to be

1 McLain v. State (Tex. App.), 17 S. W. Rep 1092.

2 Bluitt v. State, 12 Tex App. 39; 41 Am Rep. 666. A witness was permitted, against defendant's objection, to testify that he had seen two pairs of men's shoes, "number nines," in an old uninhabited house about three

quarters of a mile from defendant's residence. Evidence previously given tended to identify goods found in this old house as having come from the burglarized storehouse, and a valise found in defendant's possession was shown to have contained goods of like kind. It also appeared that defendant and another who was suspected of being implicated in the burglary both wore a No. 9 shoe, and that on the morning after the burglary tracks of two men had been seen in the public road going to and coming from the burglarized storehouse. Held, that the evidence objected to was relevant. - England v. State, 89 Ala. 76. Defendant was seen near a house which was burglarized about the time when the burglary must have been committed, and tracks which several witnesses testified were those of defendant were found leading directly from the window of that house to his. The stolen property was the next morning found in his house, but in his sister's trunk. He did not attempt to explain how it came there, and she was not sworn as a witness. Held, sufficient to sustain a verdict of guilty.- Harris v. State, 84 Ga. 269.

3 Cooper v. State, 88 Ala. 107.