McCourt v. . People

Andrews, J. There was evidence authorizing the submission to the jury of the question whether the prisoner gained admission to the cellar by opening the door from the cellar-way. This door was an outer door of the house. The fact that there was another door opening outwardly before reaching it, did not make it an inner door of the house. Like a *586 storm-door, the outer door was a barrier to the approach to the outer door of the house, and access to the house could not be obtained until the second door was opened. If, therefore, the prisoner in entering the cellar unlatched the door immediately communicating with it, there was a breaking and entry which would constitute burglary, provided the other constituent of the offence was made out, viz., that the prisoner entered with the intent to commit a crime. (2 R. S., 668, §§ 13. 18.) The material question in the case is, whether the evidence justified tire finding of the jury that the prisoner broke and entered the cellar with intent to steal cider therein ; which is the intent charged in the indictment. The breaking and entry was not a substantive offence; and if the evidence was insufficient to show that it was done with intent to commit a larceny, the judge should have directed an acquittal. Every taking by one person of the personal property of another, without his consent, is not larceny; and this, although it was taken without right, or claim of right, and for the purpose of appropriating it to the use of the taker. Superadded to this, there must have been a felonious intent, for without it there was no crime. It would, in the absence of such an intent, be a bare trespass, which, however aggravated, would not be crime. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury. (1 Hale’s P. 0., 509.) Whether the criminal intent existed in the mind of a person accused of crime at the time of the commission of the alleged criminal act, must of necessity be inferred and found from other facts which in their nature are the subject of specific proof; and for this reason it is, that the other constituents of the crime being proved, it must, ordinarily, be left to the jury to determine, from all the circumstances, whether the criminal intent existed. In some cases the inference is irresistible, and in others it may be, and often is, a matter of great difficulty to determine whether the accused committed the act charged with a *587 criminal purpose. But there are usually found in connection with an act done, which is charged to be criminal, attending circumstances which characterize it, and if these are absent, or the circumstances proved are consistent with innocence, a conviction cannot be safely allowed. In this case the accused entered the cellar without right and against the protest of the prosecutor’s daughter, with intent to obtain a drink of cider, and in that way to appropriate it to his own use and deprive the prosecutor of his property. So, if in passing through the prosecutor’s orchard he had, without the consent and against the will of the owner, picked from the ground an apple and eaten it, the act would meet the general definition of larceny, to wit, a taking of the personal property of another, without his consent, and appropriating it to his own use with design to deprive the owner of it. Larceny might be predicated of such a transaction, but if it appeared the act was done openly, in the day-time, in the sight of the owner, a jury would not be called upon to convict; and the court might properly so advise them and direct an acquittal. In the case supposed the act would be a plain trespass, and the circumstances proved would be consistent with a design on the part of the accused to commit a trespass, and- there would be an absence of circumstances usually accompanying a felonious taking. In the case before us the accused was guilty of a rude and aggravated trespass. He persisted in entering the cellar to draw cider although forbidden to do so by the prosecutor’s daughter. He offered to pay for it if she would furnish it. He had procured cider at this house before, and he was partially intoxicated. But these circumstances were no justification of his act; the daughter had a right to refuse to give him cider, and his offer to pay for it gave him no right to take it by force; and his intoxication, while it may to some extent account for his conduct, did not mitigate his offence or excuse his crime, if one was committed. But there was an absence of the circumstances which ordinarily attend the commission of larceny and which distinguish it from a mere *588 trespass. There was neither fraud," stratagem or stealth. The value of the cider which he intended to take was trivial, and the whole transaction was open, in the day-time, and in the presence or within the observation and knowledge of the prosecutor’s daughter. The people gave in evidence the declaration of the accused, made to the prosecutor a short time after the transaction, on the occasion of the settlement of the civil damages, in answer to an inquiry, what his object was in so conducting himself at the house, that he;was “ rum crazy ; ” and this was very likely the truth. There was not only an absence of the usual indicia of a felonious taking, but all the circumstances proved are consistent with the view that the transaction was a trespass merely. To find this transaction a larceny it is necessary to override the ordinary presumption of innocence and to reject a construction of the' prisoner’s conduct, which accounts for all the circumstances proved without imputing crime, and to impute a criminal intention, in the absence of the ear-marks which ordinarily attend and characterize it. The accused was convicted of burglary and larceny and was sentenced to two years in the State prison. There was not, we think, sufficient evidence to warrant the conviction, in that it did not justify an inference that the accused acted with a felonious intent. . We cannot sustain the conviction without confounding the distinction between criminal acts and such as, however reprehensible, involve only a violation of private rights, and injuries for which there is a remedy only by civil action. The refusal of the court to direct an acquittal was error, for which the conviction should be reversed. All concur. Judgment reversed.