Cady v. United States, 4011.

• Decision Date: 05 November 1923
• Docket Number: 4011.
• Citation: 293 F. 829
• Parties: CADY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

293 F. 829

CADY et al. v. UNITED STATES.

No. 4011.

United States Court of Appeals, District of Columbia.

November 5, 1923

Submitted October 4, 1923.

Appeal from the Supreme Court of the District of Columbia.

T Morris Wampler, of Washington, D.C., for appellants.

Peyton Gordon and J. H. Bilbrey, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BAILEY Justice of the Supreme Court of the District of Columbia.

SMYTH Chief Justice.

From a conviction of the crime of feloniously entering, with intent to commit larceny, the garage occupied and used by one Edward L. Glenn, the defendants appeal. No evidence was offered by them, but they claim that the case made out by the government was not sufficient to establish their guilt, and that the court erred in not sustaining their motion for a directed verdict. This is the only point presented for our consideration.

At the time of the offense charged Glenn rented a garage located in the rear of 1515 R. Street N.W., Washington, in which he kept his automobile and its accessories. He permitted another person to occupy the garage with him. On the night before the breaking and entering, about 9 o'clock, he locked the garage and did not see it again until some time the following evening. About 7 o'clock of the morning after he had locked it the witness Martz, a mechanic, whose shop was located in the neighborhood, but who happened to be near the garage at the time, heard a noise in the vicinity of the garage, and went around the corner to see what had caused it. He found the doors open, the staple which had held the lock and the lock lying on the ground, and three men, two of whom were the defendants, in the garage. As soon as the men saw him, they came out of the garage without closing the doors behind them. Witness asked them if they were going to close the doors. They made no response, but got into a waiting automobile and drove away. This was all the testimony produced.

In the light of it we may inquire: Who pulled the staple and then opened the doors, and with what intent were these things done? Why were the defendants there, and why did they not give some reasons for their presence? Why did they come to the garage in an automobile ready to swiftly carry away tires, tools, etc? Would men bent on an honest mission have acted so? True, they took nothing, but this is immaterial. They were not charged with taking anything, but with the intent to do so. It is said that, since we held in Ambrose v. United States, 45 App.D.C. 112, 123, an embezzlement case, that the mere fact of taking should not raise the presumption of a felonious intent, the mere fact of entering the garage should not have that effect. This is quite right, but not apropos. It ignores the circumstances under which the entry was made. There is much more here than the mere entering.

We are reminded of the well-established and oft-repeated principle that, unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused, and, where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a conviction. But it is not applicable here, because the facts established are such that the jury was fully warranted in deducing from them inferences which excluded every other hypothesis but that of guilt.

In People v. Soto, 53 Cal. 415, 416, a person entered a building through a window at a late hour of the night, after the lights were extinguished. No explanation of his intention was given. The court said that it might well be inferred that his purpose was to commit larceny, such being the usual intent under these circumstances. Another case to the same effect is that of Steadman v. State of Georgia, 81 Ga. 736, 737, 8 S.E. 420, in which the accused was charged with attempted burglary. On appeal it was argued that there was not sufficient proof of the intent laid in the indictment. But the court did not agree with this view, and, after calling attention to the fact that there was no other motive than that of the felonious one in sight, said:

'When there is no other reason for breaking into our neighbor's house near the hour of midnight, if we do it at all, we are after his property or his money.' One Shedd was charged with attempting to enter a certain building with intent to steal. There was testimony tending to show that he was seen at night on the piazza of the building; that he left the building when an officer appeared, and took refuge in some hollyhocks in the yard, where he was arrested. When apprehended he was apparently asleep, and he explained to the officer that he had been drinking. He made false and contradictory statements about his name and residence. On investigation it was found that the porch door and three windows of the house were open. The court said the jury might well have found from these circumstances that the breaking was done for the purpose of stealing. Commonwealth v. Shedd, 140 Mass. 451, 453, 5 N.E. 254.

To be sure we have no contradictory statements here, but the failure of the defendants in the circumstances to give any reason for their presence is just as significant. We think the evidence was quite enough to require the case to be submitted to the jury upon the question as to whether they were guilty of breaking and entering with the intent alleged.

The defendants argue that there is a variance between the proof and the indictment, in that they were charged with entering a building occupied and used by Glenn, whereas it appears that by his permission, it was also occupied by another person. Many cases are cited in support of their contention. We have read them, and we are convinced that none is in point. It is not our...