compared with those in the road, refused and declared he would rather pay for the meal than have any trouble in court, - is not such proof of guilt as will warrant a verdict of guilty.' $357. Showing another offense. On a trial for burglary, other criminal acts than those charged may be proved to show guilty knowledge, establish identity, make out the res gestæ, or complete the chain of circumstantial evidence.' But evi 1 Prather v. Commonwealth, 85 Va. 122. On trial for burglary with intent to rape, prosecutrix testified that she and her brother occupied a bed in a room adjoining her parents' room, and that she was aroused about ten o'clock at night by a hand on her breast. She rushed to her parents' room, procured a match, returned and struck it, and saw a man whom she recognized as defendant, though his back was towards her, in the act of jumping through the window. Prosecutrix returned to her parents' room, lit the lamp with the same match, and stated that the intruder was defendant. The father of prosecutrix testified that he heard his daughter's call, and heard her order the man to leave. He afterward found an upturned tub under the window, and the trail of a bare-footed man, the tracks of which, as he testified, corresponded to defendant's feet. Another witness, who was in the house at the time, corroborated the father, except that he testified that prosecutrix first said she did not recognize the intruder, but afterward said it was defendant. Witnesses for defendant testified to a complete alibi, and that the tracks did not correspond to defendant's foot. Held, that a conviction was not warranted. - Coleman v. State, 26 Tex. App. 252. It appeared that the person whose accomplice defendant, a negro, was alleged to have been, had been convicted for the crime. It was shown that on the morning after the burglary was committed foot-prints made by a person without shoes, and by one with shoes, were discovered near the house entered, and leading to the house of the convicted accomplice. Witness, in whose employ defendant was two years before, thought the shoe-tracks were defendant's. Three negro women, with whom defendant's alleged accomplice was on terms of familiar intimacy, testified that defendant was at their house the night of the crime, and on leaving told them he was going to rob the house of which he was accused of entering, and that he borrowed a boy's cap, saying that he would not be recognized with that on. The cap was found on defendant when arrested. These women, on the trial of defendant's alleged accomplice, testified that defendant, on leaving their house, said he "intended to have some meat before going to bed" (meat being among the goods stolen), but witnesses did not then speak of his intention to commit robbery. Other testimony by the women was conflicting, and the shoe-tracks were similar to those of one of the women. Defendant had been living in other parts of the state for about a year, and had not been seen near the house entered until two weeks after the burglary. Held, that a verdict of guilty was not sustained by the evidence. Hite v. Commonwealth (Va.), 14 S. E. Rep. 696. Mason v. State, 42 Ala. 532. dence of other distinct burglaries committed by the defendant is prima facie irrelevant, and when the record does not show any ground for the admission of such evidence, the court will not examine the record of another case between the same parties to show that no error was committed.' The people may show facts apparently connected with the act of breaking into other houses at the same time, if they tend to show that the several burglaries were parts of one scheme, and the person concerned in the others were therefore guilty of the offense for which the prosecution was instituted; the tendency of the evidence is a question for the jury.' But it is not competent to prove that the defendant committed a burglary in the same house on a former occasion. And the state cannot, in order to interpret the intent of one charged with burglary of a house and larceny of a pocket-knife, prove burglary at a different time and place, and larceny of a gold watch. admission of evidence of other burglaries is not reviewable when it was not objected to on the trial.' 1 Mason v. State, 42 Ala. 543 2 People v. Mead, 50 Mich. 228. 3 Lightfoot v. People, 16 Mich. 507. 4 State v. Johnson, 38 La. An. 686, 688. But the 5 State v. Robinson, (S. C.) 14 S. E. Rep. 766. On trial for breaking and entering the city hall of Charlestown, the prosecution offered evidence to prove that the ward of a certain key found in the prisoner's possession was made and fitted by him to open the door of the Lancaster bank building. Held, that such evidence was improper.-Com. v. Wilson, 2 Cush. 590. On a trial for breaking open a barn and stealing goods therefrom, the evidence showed that the goods were discovered five days subsequent to the burglary on the prisoner's boat. Held, error to allow the prosecution to prove that other goods were found on the prisoner's boat which had been stolen from another person two or three weeks previous to the transaction in question. -Hall v. People, 6 Parker 671. A. and B. were jointly indicted for robbing C.'s store. On the same day and in the same locality, D.'s house was also robbed, to which offense A. had pleaded guilty on another indictment. The commonwealth, on the theory that A. and B. were members of an organization banded together to commit burglary, offered the evidence of A.'s complicity in the robbing of D.'s house to support the indictment against A. and B. There was some evidence that, on the day in question, A. and B. were seen together in that locality. Held, that no sufficient connection was established between the offenses to warrant the submission to the jury of the evidence of A.'s complicity in the robbery of D.'s house, so as to affect B.-Swan v. Commonwealth, 104 Pa. St. 218. $358. Possession of burglars' tools. The fact that burglarious tools were found in the possession of defendant soon after the commission of the offense, may be given in evidence when they constitute a link in the chain of circumstances which tend to connect the defendant with the particular burglary charged;' as where it appears that similar tools had been used in the commission of the crime, and that defendant was in the neighborhood at the time. So, where several defendants indicted for burglary were arrested while together shortly after the burglary, evidence that one of them had burglars' tools in his possession was competent.' And evidence that burglars' tools, found at the place where the burglary was committed, were made for another jointly indicted with prisoner for the burglary and shown to be connected with the prisoner in its commission, is admissible to prove the guilt of the prisoner.* 1 People v. Winters, 29 Cal. 658; State v. Dubois, 49 Mo. 573. 2 People v. Hope, 62 Cal. 291. 3 State v. Franks, 64 Iowa 39. 4 Clark v. People, 5 Thomp. & C. 33; 2 Hun 523. And see Foster v. People, 3 Hun 6. The defendant was charged with burglary in entering the house, room, shop, warehouse, store and building of S., with intent then and there to commit larceny, and was convicted of attempting to commit the crime. It appeared that S. owned the building, and that he occupied the first floor as a banking office, and rented the second and third floors to tenants; that in consequence of the discovery of supposed indications of a design on the part of some person or persons to force an opening into the vault of the bank located in said building, certain police officers had been stationed where they could readily detect anyone entering the building on the night of the arrest of the defendant, and that the defendant entered the building and was arrested on the second floor in a closet; and from an inspection of the premises, it appeared that in a closet over the bank vault a trap door about two feet wide and two and a half feet long had been sawed out of the floor, and then fastened down with screws, so that it might be opened without making much, if any, noise; and under the trapdoor and on top of the vault there was found a large quantity of burglar's tools, and a hole in the vault of the depth of two feet; and other tools, of a similar character, were found in the defendant's trunk in a room occupied by him in San Francisco. Held, that the tools found in the excavation over the vault, and also those found in the appellant's trunk were admissible in evidence.-People v. Hope, 62 Cal. 291. The following was held sufficient evidence of an attempt to commit a burglary: The prisoner, having reconnoitered the premises, agreed with the witness that about one o'clock that night they would commit a burglary by entering a certain On trial of one indicted under Code Ala. 1886, § 3788, providing that any person who has in his possession any implement or instrument designed and intended to aid in the commission of burglary or larceny in this state, or elsewhere," is guilty of a misdemeanor, it is proper to refuse to charge that in order to convict it must appear that the implements found in defendant's possession "were designed and intended to aid in the commission of burglary or larceny in this state," as the place where the implements are intended to be used is not a constituent part of the offense.' On such a trial, there being evidence that defendant had said he had not been in the safe business long, and would have quit it six months before if he had not met one B., who persuaded him to go out and do some work with him, the evidence also showing that defendant had the tools in his possession, evidence that B. was a burglar, safe-blower, pickpocket, and thief, is competent as tending to prove the intent with which defendant had the tools.2 § 359. Possession of stolen property — (a) Alabama— In order to make the possession of goods evidence against a store; in pursuance of such design and agreement, at about the hour of one they went to the store through the alley in its rear; the prisoner carried, or caused to be carried there, a set of burglar's tools to aid them in committing the burglary; when they arrived the prisoner suggested that none of the tools were strong enough to enable them to force an entrance; they then concluded to enter a blacksmith's shop close by, in order to get a crowbar, or some other tool with which to break into the store, and before they entered the shop an alarm was given and they were intercepted and prevented from executing their intended purpose People v. Lawton, 56 Barb. 126. 1 Davis v. State, 87 Ala. 10. And see Com. v. Tionon, 8 Gray, 375. 2 People v. Howard, 73 Mich. 10. On an indictment under Pen. Code, N. Y. § 508, providing that if anyone has in his possession, in the day or night time, any tool or implements, adapted or commonly used for the commission of burglary or other crime, under circumstances evincing an intent to use them in the commission of crime, he shall be guilty, etc., it appeared that defendant was found loitering on the street at one o'clock in the morning, and when asked what he was doing refused to answer. He also made evasive and contradictory statements as to where he lived. There were found in his possession certain instruments which were adapted to burglary as well as to honest work. Defendant had previously been convicted of burglary. Held, that the evidence was sufficient to sustain a conviction.People v. Morgan, 59 Hun, 619. person charged with burglary, the burglary must be proved.' Such possession, even though unexplained and exclusive, does not authorize the inference of defendant's complicity in the larceny or burglary charged, unless it is also recent, or soon after the commission of the offense; and while the word recent, in this connection, is not capable of any exact definition, but varies, within a certain range, with the conditions of each particular case, and though there may be cases in which the court may, as matter of law, pronounce the possession recent, yet the question is usually one of fact for the determination of the jury, and a charge which ignores it, or withdraws it from their consideration, is erroneous." But it is proper to charge that, if defendant soon after the commission of the burglary was found in possession of a part of the goods stolen, this would cast on him the burden of explaining his possession. And it is error to charge that, while such pos-. session is prima facie evidence of larceny, yet, even if defendant had the stolen money, he could not be convicted, unless the evidence convinced the jury, "to the exclusion of every reasonable hypothesis other than that the defendant broke and entered the dwelling-house with the intent to steal," as such charge is confusing and misleading.* 3 (b) California. If a person is indicted for breaking and entering a house with intent to steal goods therein, the fact alone, that goods taken from the house were found in his possession soon after the alleged breaking, although a circumstance to be considered in determining his guilt, is not sufficient to convict. In connection with other evidence, however, it may be sufficient to satisfy the jury that defendant is guilty. Thus, where the evidence against defendant is circumstantial, evidence is admissible which tends to identify shoes found in the possession of defendant the next morning 5 'Fuller v. State, 48 Ala. 273. 2 Sylvester v. State, 72 Ala. 195. |