State v. Wills

• Decision Date: 30 March 1966
• Citation: 107 N.H. 107,218 A.2d 47
• Court: New Hampshire Supreme Court
• Parties: STATE v. Robert WILLS.

Page 47

218 A.2d 47

107 N.H. 107

STATE v. Robert WILLS.

Supreme Court of New Hampshire.

Argued Feb. 1, 1966.

Decided March 30, 1966.

William Maynard, Atty. Gen., William F. Cann, Asst. Atty. Gen., and Robert A. Carignan, County Atty., for the State.

Robert R. Renfro, Portsmouth, for defendant.

KENISON, Chief Justice.

The defendant was indicted and convicted, after trial by jury, of breaking and entering a dwelling house at night with intent to commit larceny therein in violation of RSA 583:2. The defendant's appeal, allowed by Loughlin, J., is based on the contention that the evidence does not 'establish that Wills intended to commit larceny when he entered the dwelling house.'

At approximately 12:45 A.M. on the morning of December 19, 1964, James Richardson was awakened when someone 'banged' into a metal railing on a stairway leading from the living room on the lower level to the bedroom on the upper level of his house, situated at 3 Riverdale Avenue in Dover, New Hampshire. The house was in darkness except for some light coming in from a street light across the street. The front door had been closed but not locked. Richardson called out, 'Who's out of bed?' but no one answered. He could see shadows moving on the upper level. He then shouted, 'There's somebody in the house' as he ran out of his bedroom towards the top of the stairs. In the meantime someone had moved down the stairway but Richardson could not see who it was. Richardson saw a man he had never seen before at the foot of the stairs near the door and ordered him not to move, then called his wife to turn on the lights and summon the police which she did. The defendant was at the foot of the stairs. The defendant told Richardson and the police officer that he had been sent there to obtain tow rope to aid a stranded motorist who was near the Community House, 'off the road.'

The defendant was taken in the police cruiser to find the stranded motorist but no automobile was located near the Community House nor were any tracks of any automobile in the snow discovered there or at other places that the defendant claimed there was an automobile stranded on the side of the road. A 3/8-inch tow rope, 30 to 50 feet long, was in the rear seat of the defendant's car. The defendant was sober. Nothing was taken from the Richardson dwelling and a wallet with two hundred dollars in it was still lying on the 'hi-fi' in the living room where it had been left by Richardson when he retired for the night.

The evidence summarized in the two previous paragraphs is not seriously disputed except the defendant denied that he was on the upper level of the Richardson house. The defendant testified that he knocked on the front aluminum door of the Richardson house two or three times, rang the bell and hit the door and that after he opened it and stepped inside the house, he 'hollered 2 or 3 times.'

All of the elements of the statutory crime of breaking and entering a dwelling house at night with intent to commit larceny therein (RSA 583:2) must be proved by the State and no burden is placed on the defendant to disprove any part of the offense. State v. Tierney, 104 N.H. 408, 188 A.2d 333. Nevertheless, any element of the offense can be proved by circumstantial evidence. State v. Keegan, 106 N.H. 152, 207 A.2d 427; State v. Skillings, 98 N.H. 203, 97 A.2d 202; State v. Bancroft, 10 N.H. 105. Conduct illuminates intent. 'If, for example, the charge is breaking and entering with intent to steal, obviously 'intent' here signifies 'design', or 'plan', and whatever would otherwise be receivable to show Design would also be here receivable,-in particular, the conduct throwing light on the design of the person's entrance.' 2 Wigmore, Evidence (3d ed.) s. 242, pp. 38, 39. Wigmore, supra, p. 39, n. 1, cites State v. Teeter, 69 Iowa 717, 719, 27 N.W. 485, 486, in part as follows: 'It often occurs in human experience that the mere fact that a particular act has been done affords the best evidence of the motive or intention with which it was done. * * * So, if one was to be found in the night-time in the act of breaking into a building in which money or property of great value was deposited, his act would give very strong evidence indeed of the motive or purpose which prompted it.'

Intent to steal is frequently not susceptible of direct proof (State v. Moore, 12 N.H. 42, 48) and a jury may convict or acquit a defendant depending on the strength of the inference that may be drawn from the defendant's conduct under all the circumstances of the case. State v. Charette, 98 N.H. 477, 103 A.2d 192, 43 A.L.R.2d 827; State v. Mihoy, 98 N.H. 38, 93 A.2d 661, 35 A.L.R.2d 852; State v. Burley, 95 N.H. 77, 57 A.2d 618; State v....