Ragland v. State

• Decision Date: 29 November 1902
• Citation: 70 S.W. 1039,71 Ark. 65
• Parties: RAGLAND v. STATE
• Court: Arkansas Supreme Court

70 S.W. 1039

71 Ark. 65

RAGLAND v. STATE

Supreme Court of Arkansas

November 29, 1902

Appeal from Jefferson Circuit Court, ANTONIO B. GRACE, Judge.

Affirmed.

Affirmed.

X. O Pindall and Campbell & Stevenson, for appellant.

There being no evidence to show intent to commit grand larceny, the defendant was guilty of a trespass at most. Underhill, Cr Ev. § 377; 3 Green. Ev. § 92; Rapalje, Larc. § 354; 109 Ill. 109; 12 Nev. 37. In the absence of intent to commit a felony, the breaking and entering constituted a mere trespass. 42 La. An. 273; Arch. Cr. Pl. & Pr. 340; Roscoe Cr. Ev. 365; 5 Am. & Eng. Enc. Law (2d Ed.) 59. The intent must be proved or implied from some overt act, if the felony is not actually carried out. 4 Park. Cr. Rep. 153; 5 Am. & Eng. Enc. Law, 59. The intent cannot be implied from breaking and entering alone. 29 Ia. 316, 320; 36 Neb. 38. It was error to admit evidence as to measurements made from defendant's feet and tracks. Underhill, Cr. Ev. § 374; 7 Tex.App. 245; 63 Ga. 667. The remarks of the trial judge in the hearing and presence of the jury constituted error. 51 Mich. 177; 55 Kan. 351; 53 Mich. 355, 361; 57 S.W. (Tex. Cr. App.) 825.

George W. Murphy, Attorney General, for appellee.

There was evidence sufficient to justify the jury in finding that the intent was larcenous. Clark, Cr. Law, 238; 1 McClain, Cr. Law, § 506; 49 Ark. 514. There was no error in admitting measurements of defendant's tracks. 1 McClain, Cr. Law, §§ 405, 406.

OPINION

WOOD, J.

Appellant appeals from a conviction for burglary, and insists upon a reversal of the judgment for the following reasons:

Because there was no evidence to show intent to commit grand larceny, the felony which it is charged he intended to commit. The proof tends to show that appellant, about one o'clock at night, opened a window of the bed room of the house of one Mrs. Amanda Grace, and thrust in his head, when she screamed and ran for aid. In the room adjoining her bed room, she kept the post office, and sometimes had registered packages therein of over the value of ten dollars. Appellant received his mail there and sometimes got money orders and registered letters. Mrs. Grace was eighty years of age, and the only female occupant of the house.

To sustain this conviction, there must be evidence to justify the jury in finding that the appellant, at the time he broke and entered the house, intended to commit the crime of grand larceny. Harvick v. State, 49 Ark. 514, 6 S.W. 19; Clark, Cr. Law, p. 268; 1 McClain, Cr. Law, § 506. If the intent to commit the specific felony charged in the indictment exists at the time of the breaking and entry, the offense is burglary, though the offender be frightened off before he has carried out his intent. Clark, Cr. Law, supra._ The question of intent was for the jury under the circumstances, and there was ample proof to sustain their verdict.

The post office was a money order office, and registered packages of value were received and forwarded from there. This appellant knew. It would have been of no consequence, even if there had not been any money or any registered packages in the house at the time appellant broke and entered same, unless it had been shown that he knew that to be the fact at the time. State v. Beal, 37 Ohio St. 108; Clark, Cr. Law, supra.

Since Mrs. Grace was eighty years of age, it could hardly be said that appellant's motive was rape, rather than larceny, and, as no ill feeling toward any occupant of the house appears, it was more reasonable for the jury to determine that the motive was larceny, rather than that it was to commit some other felony. In short, as to whether the defendant intended to commit any felony at all, and, if so, what felony, were questions for the jury. They have said it was grand larceny, as charged.

In a case in California, the proof showed that the defendant, at a late hour of the night, after the family had retired and the lights had been extinguished, entered the building through a window, and was found in a bed room, in which a woman and three infant children were sleeping in one bed, that he seized the woman by the throat and threw himself across the bed, but on her making an outcry, left the building without any further act of violence, and without having committed a larceny. He was charged with burglary with intent to commit larceny, and contended on appeal that the verdict was not sustained by the evidence. The court said: "The intent with which he entered was a question of fact for the jury; and, though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under these circumstances." The court held as above, notwithstanding the woman in the house testified that it was her belief that the defendant entered the house with the intent to have sexual intercourse with her. People v. Soto, 53 Cal. 415. We cite this case to show how far the courts have gone in sustaining the verdict of a jury upon the question of intent, and not with the view of approving it as a correct doctrine under the facts of that case. It certainly presented much stronger ground for reversal upon the question of intent, on the facts, than the case at bar.

A witness, King, was permitted to testify that "he had told Tom Graves, on the morning of the alleged burglary, that some one tried to break in on Mrs. Grace last night, and that some one wanted to rob her or do something to her." This is urged as error. This statement of the witness King came in response to the request "to tell all he knew about it " and he was proceeding to tell what he did with reference to the tracks he had discovered coming from the post office to the...