TATE v. STATE

Henry M. Crymes, of Memphis, Tenn., for appellant.

Appellant's assignments of error present only two questions: (1) Was there any material evidence on which the jury could base a reasonable inference that the appellant, at the time the house was broken into, entertained in his mind an intent to commit larceny; and (2) does the evidence greatly preponderate against the finding of the jury that the appellant did not have any such intent.

I concede the soundness of the rule laid down by this court in Moseley v. State, 92 Miss. 250, 45 So. 833, that where a burglarious entrance is effected and there is no other reasonable inference which the jury may draw from the fact of such entry than that the motive of the enterer was the usual intent to steal, the intent to commit larceny may be inferred. However, the rule still prevails in Mississippi that the crime of burglary consists of two essential elements, viz.: (1) The burglarious breaking and entering of the house, and (2) the felonious intent to commit some crime therein. Both elements must be laid in the indictment, and both must be proved as laid.

State v. Buchanan, 75 Miss. 349, 22 So. 875; Taylor v. State (Miss.), 37 So. 498.

If an accused, without having formed any intent to steal, becomes too drunk to entertain a felonious intent to steal, and in this condition takes another's goods, and relinquishes them before the intent could arise, or returns them the instant his restored mind has cognizance of the possession of them, there is no larceny, since the animus purandi is an essential element of the crime.

Edwards v. State, 178 Miss. 696, 174 So. 57.

All of the evidence which links this appellant with the offense with which he is charged is circumstantial in character. This court has uniformly held that, in the application of circumstantial evidence, the utmost caution and vigilance must be used, and that circumstantial evidence is insufficient where, assuming all to be proved in behalf of the state which the evidence tends to prove in that behalf, there remains within the evidence, or the want thereof, some other rational hypothesis consistent with innocence, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth.

Johnson v. State (Miss.), 198 So. 554.

Considering the noisy and violent manner in which entrance to Mrs. Lusher's house was effected and the exit made; the fact that nothing was taken and there is no evidence of an attempt to ransack the house, although whoever entered the house had an ample opportunity to fully accomplish whatever purpose he entertained in his mind; and the facts that this appellant, following the time that the house was entered, behaved in such a manner as to clearly indicate that there lingered in his memory no recollection whatever of having entered the house or left his shoes there — not only does it seem to me that the jury could not draw a reasonable inference that this appellant did enter the house with any intent to steal, but it seems that the only rational hypothesis which a reasonable mind can draw from these circumstances is either (1) that the appellant did not enter the house, or (2) that, if he did, he was so drunk at the time that he was incapable of entertaining a felonious intent.

Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.

The evidence, although circumstantial, was ample to support the verdict of the jury as to the breaking and entering of the home by the appellant. This is not seriously questioned by appellant, but he argues that the undisputed proof limited the time within which the appellant had an opportunity to break into the house to the period between the time that he got out of the car at daybreak and 6:30 or 7:00 o'clock when his actions are fully accounted for.

The appellant testified that on Saturday evening, after he returned from Memphis on the first trip and after he left his home, he went to Nesbitt and went back to Memphis.

Bettie Reed was introduced and testified in behalf of the appellant, stating that the appellant came to her home about 4:00 o'clock in the morning; that she let him in her house; that he did not have his shoes on at that time and that her home was about 100 yards from the Lusher house, which was broken into. The appellant also testified that he went to Bettie Reed's house. This testimony places him in the immediate vicinity and in close proximity to the Lusher home which was broken into.

Appellant cites the case of Edwards v. State, 178 Miss. 696, 174 So. 57. In this case the court held that it was reversible error for the state, or rather the court, to instruct the jury that "voluntary drunkenness is no defense to crime," and that such instruction "erroneously eliminated from the jury any consideration whatever of the appellant's evidence as to his drunkenness — the extent and effect thereof." The court further held that evidence as to any specific intent to commit the crime of larceny was a question for the jury.

Theft being the usual object of burglary a conviction under an indictment for burglary with intent to commit larceny will not be disturbed for want of affirmative proof of the intent, in the absence of evidence that the burglarious entry had a different object.

Moseley v. State, 92 Miss. 250, 45 So. 833.

Where it is shown that accused broke and entered a dwelling house in the nighttime, and no satisfactory explanation of his conduct appears from evidence offered by him or from the circumstances, it may ordinarily be presumed that he broke and entered with intent to commit larceny, though when detected in the dwelling he had not appropriated any of the householder's belongings.

State v. Walker, 109 W. Va. 351, 154 S.E. 866.