State v. Teeter

Peed, J.

*718 1. BURGLARY: evidence as entering. *717 -I. The indictment charges that the defendant, in the night-time, broke and entered a building owned and *718 occupied by Frederick Saunders, in which goods, L ./ ' 0 ’ wares and merchandise and things of value were kept for saie and deposit, with intent to commit the crime of larceny. There was evidence which warranted the jury in finding that the defendant did,'on the night of the. eighth of September, 1883, enter the building described in the indictment, through a window, which he opened for that purpose. The building was occupied and used as a saloon by the person in whom the ownership is laid in the indictment. There was 'no direct evidence, of defendant’s intention in entering the building. .The saloon keeper was in the building at the time, and, when defendant saw him, he immediately escaped'by the window through which he had entered. The district court instructed the jury that, before they would be warranted in convicting the defendant, they must be satisfied beyond all reasonable doubt, not only that he broke and entered the building, but that his intention at the time was to commit the crime of larceny within it; also that, if he broke and entered the building, they should “ look at all the facts and circumstances disclosed by the evidence to ascertain the intent with which he entered.”

It is insisted that this latter instruction is erroneous, for the reason that, under it, the jury were warranted in considering the fact of the breaking and entering in determining whether the act was done with the intent charged. It is argued that the act of breaking and entering the building, standing alone, evidences no intent beyond the act itself, and the question whether the act was done with the specific intent charged must be determined alone from the other facts and circumstances of the transaction. But this view is not sound. 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. If one was to break and enter a building which was known to be on fire, the reasonable presumption from his act would be that his intention was either to attempt the extinguishment of *719 the fire, or the rescue of the property or persons within it. 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. And a case would hardly arise, we think, in which it would not be proper to consider the fact that the building was broken and entered, in determining the intent with which the party acted in doing the act. While the instruction authorized the jury to consider that fact in determining the intent, it did not limit them to it alone, but directed them to consider all the circumstances of the transaction, and determine from them whether defendant had the particular intention alleged in the indictment, and we think it is correct.

2. evidence of ownership: parol. II. The prosecuting witness was asked whether he owned the building described in the indictment. This question was objected to, on the ground that the ownership of the property could not be proved by parol; but the objection was. overruled. If it had been material to prove the title to the property, the parol evidence offered would probably not have been competent. But it was material only to prove that the person named in the indictment as the owner was in the occupancy and possession of the building. Whart. Orim. Law, §§ 780 — 799, 816. 'This is the rule at common law, and it is not changed by any provision of our statute.

3 criminal psaehment of defendant. III. The defendant was examined as a witness in his own behalf. After his examination, the state offered evidence tending to prove that his general reputation for truth and veracity was bad. This evidence was objected to, on the ground that defendant had not been notified, either by the minutes of evidence returned by the grand jury, or by any notice served upon him, of the intention of the state to introduce evidence on that question. It is a sufficient answer to this objection to say that the state did not offer the evidence in support of the indictment, but *720 it was introduced for the purpose of affecting defendant’s credit as a witness. When the defendant in a criminal case offers himself as a witness, he may be impeached or contradicted in the same manner that other witnesses are. His testimony is to be tested by the rules which are applicable to that of witnesses generally, and any fact or circumstance which may lawfully be shown for the purpose of affecting the credibility of other witnesses may be shown for the same purpose as to his testimony.

We have examined the record with care, and we find no ground upon which we think the judgment should be disturbed. It will therefore be

Affirmed.

Beck, J., dissenting.