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Where an incendiary fire was proved to have been kindled with kerosene, it may be shown that, about the same date, the accused had kerosene stains upon his clothing," or that two or three days after the fire a witness smelled the earth under the building and that it smelled of kerosene, and that the accused was seen leaving the building burned with an oil can in his hands.""

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It may be shown that the accused, when arrested, soon after the fire, had poisoned meat in his possession, prepared in a peculiar manner, where a dog belonging to the owner of the burned property was poisoned on the night of the fire and a post-mortem examination show poisoned meat in the animal's stomach similarly prepared. If the accused is charged with the arson of his own building it may be relevant to show that he accused another of this crime, but such evidence is not admissible where the building is owned by a person other than the accused."7

§ 371. Burglary defined-Entrance at night-time-Preparations to commit.-Burglary is the breaking in and entering the house of another in the night-time with the intent to commit a felony (usually larceny, but often rape or murder), and whether the felony is actually committed or not." The elements to be proved at common law are: First, a felonious breaking and entering; second, that it was a dwelling-house; third, that it occurred in the nighttime; fourth, an intention to commit some felony in the house. The intent to commit a felony is always for the jury to determine. In doing so they may consider all the facts and circumstances as disclosed by the evidence.59 For it is a well-settled proposition that burglary may be proved by circumstantial evidence.6°

At common law it must always be shown beyond all reasonable

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doubt that the breaking in and entering occurred in the nighttime, i. e., the period intervening between the total disappearance of daylight in the evening and its reappearance at the earliest dawn of the next day, during which a person's features are not discernible. Evidence that features were discernible by artificial light, or by moon light, is not admissible." Proof of a breaking in one night and an entrance the following night will sustain a conviction. If the evidence leaves the exact time in doubt, and it cannot be positively ascertained whether the breaking in was in the night-time or not, the prisoner should have the benefit of the doubt."

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Evidence to show the condition of the house, when the owner or any other witness arrived there on the morning after the burglary is competent." It may be inferred that the crime was committed during the night from proof that at half-past five in the morning, when the occupant awoke, he found that the house had been broken open while he slept and articles were missing."7

Evidence that the accused had prepared to commit a burglary; that he had endeavored to induce the custodian of the premises which were broken into to absent himself, or had procured burglar's tools, is competent. It may be proved that tools were found in the building entered which had been taken by breaking and entering another building near by on the same night.68 Evidence that he had been seen lurking about the premises,' or had made inquiries as to property which was in the house,70 or as to

"Ashford v. State, 36 Neb. 38, 40, 53 N. W. 1036; State v. Seymour, 36 Me. 225, 227; State v. Leaden, 35 Conn. 515; Guynes v. State, 25 Tex. App. 584, 8 S. W. 667; Waters v. State, 53 Ga. 567; People v. Taggart, 43 Cal. 81, 87; Allen v. State, 40 Ala. 334, 91 Am. Dec. 477n; Commonwealth v. Glover, III Mass. 395, 402; Keeler v. State, 73 Neb. 441, 103 N. W. 64.

State v. Morris, 47 Conn. 179; State v. McKnight, 111 N. Car. 690, 692, 16 S. E. 319; Commonwealth v. Kaas, 3 Brewst. (Pa.) 422; State v.

41-UNDERHILL CRIM. EV.

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Bancroft, 10 N. H. 105, 107, 2 East
P. C. 509, 1 Hale P. C. 550.

63 Rex v. Smith, Russ. & Ry. 417.
Waters v. State, 53 Ga. 567.

6 Herndon v. State, 50 Tex. Cr. 552, 99 S. W. 558.

67 People v. Lowrie, 4 Cal. App. 137, 87 Pac. 253.

67a People v. Calvert, 22 N. Y. S. 220, 67 Hun (N. Y.) without opinion. es State v. Arthur, 135 Iowa 48, 109 N. W. 1083.

69 State v. Turner, 106 Mo. 272, 17 S. W. 304; People v. Ranier, 127 App. Div. (N. Y.) 47, 111 N. Y. S. 112.

70 Gilmore v. State, 99 Ala. 154, 13 So. 536.

the character, financial circumstances and habits of its inmates, is always admissible.1

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So it may also be shown where the accused resided, with what people he associated, and that property taken from the premises was found in his possession after the crime.73

Evidence that the accused was found in the premises which were broken into is always competent, provided his presence there is not too remote from the time of the breaking in, but the accused should be permitted to show his reasons for being there; and, if he went there to obtain property belonging to him, he may be permitted to prove that he obtained the property, and also show what he did with it.74

§ 372. Evidence to prove forcible breaking in and enteringCondition of the premises.-The gist of the crime is the forcible and malicious breaking in. Hence the condition of the premises before and after the offense may always be shown. It may be shown that foot-prints were observed on a road leading to or in the grounds around the house," that shoes of the size worn by the accused, or articles of wearing apparel belonging to him, were found near by, and that, from appearances, and in the opinion of witnesses (but based on their own observation only), force had been used to effect an entrance," that being a question upon which any man of common understanding is qualified to express an opinion.

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"State v. Ward, 103 N. Car. 419, 423, 8 S. E. 814. Proof that the value of the property in the house was small does not admit evidence that the accused is a man of large means and in good circumstances. Coates v. State, 31 Tex. Cr. 257, 261, 20 S. W. 585.

2 Osborn v. State, 50 Tex. Cr. 46, 94 S. W. 900.

Am. St. 396, note; declarations of accused, 2 Am. St. 396. Evidence of breaking and entering, see Elliott Evidence, § 2912.

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England v. State, 89 Ala. 76, 78, 8 So. 146; Field v. State, 126 Ga. 571, 55 S. E. 502.

"Fort v. State, 52 Ark. 180, 11 S. W. 959, 20 Am. St. 163; People v. Block, 15 N. Y. S. 229, 60 Hun (N

tion, "How did the accused get in?"

73 Delmont v. State, 15 Wyo. 271, 88 Y.) 583, without opinion. The quesPac. 623. "Mason v. State, 153 Ala. 46, 45 is not leading. Vallereal v. State So. 472.

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See 88 303, 337, 374. Proof of the corpus delicti, see 68 L. R. A. 41, note. Evidence that the crime was committed in the night time, see 2

(Tex., 1892), 20 S. W. 557; State v. Moore, 117 Mo. 395, 401, 22 S. W. 1086.

78 As to opinion evidence in burglary, see 2 Am. St. 397, note.

A view of the premises by the jurors in a trial for burglary will undoubtedly aid them materially in determining the means employed in breaking in, and whether or not an entrance was gained by force. As the rules and principles which regulate and govern the taking of a view are elsewhere fully elucidated no extended discussion of them is necessary in this place.79

It has been held competent to prove that burglars' instruments and implements and tools which might be used for breaking into the premises were found in or near the premises after the alleged crime, even though it may not appear that they were owned by the accused. The condition of the premises or of a safe or other article of furniture contained in them is relevant.$1.

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§ 373. Proof of constructive breaking-Non-consent of ownerOwnership and value of property.-The breaking must be proved. Proof of drawing a bolt," lifting a latch, or a window sash,** pushing open a closed door,85 or a window or transom which was fastened, or breaking in an inner door, or opening it with a

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See 229–232.

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with no greater force than is gener

** Russell v. State (Ala., 1905), 38 ally necessary for that purpose is a

So. 291.

breaking into the house. Scott v.

81 Russell v. State (Ala., 1905), 38 State, 122 Ga. 138, 50 S. E. 49.

Sims v. State, 136 Ind. 358, 360,

So. 291. *Kent v. State, 84 Ga. 438, 11 S. E. 36 N. E. 278; State v. Moore, 117 355, 20 Am. St. 376.

* State v. O'Brien, 81 Iowa 93, 95, 46 N. W. 861; State v. Groning, 33 Kan. 18, 21, 5 Pac. 446; Carter v. State, 68 Ala. 96, 97; McCourt v. People, 64 N. Y. 583; Gonzales v. State (Tex. Cr. App., 1899) 50 S. W. 1018.

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Frank v. State, 39 Miss. 705, 715. People v. Nolan, 22 Mich. 229, 235; State v. Reid, 20 Iowa 413, 421, 422; Mason v. People, 26 N. Y. 200; State v. Conners, 95 Iowa 485, 64 N. W. 295; Price V. Commonwealth (Ky.), 112 S. W. 855; People v. Gartland, 30 App. Div. (N. Y.) 534, 52 N. Y. S. 352. The opening of a window or of a door which is closed

Mo. 395, 22 S. W. 1086; Holland v. State, 47 Tex. Cr. 623, 85 S. W. 798. The raising of a window which has been left partly open is a breaking into the house. People v. White, 153 Mich. 617, 117 N. W. 161, 15 Det. Leg. N. 554, 17 L. R. A. (N. S.) 1102n. Any person may testify to the size of a pane of glass that was broken in a window, Welch v. State, 156 Ala. 112, 46 So. 856; or on the question whether a lock was broken from the inside or the outside of the door, Dupree v. State, 148 Ala. 620, 42 So. 1004.

87 Daniels v. State, 78 Ga. 98, 6 Am. St. 238n.

key,88 will sustain an allegation of breaking in. But evidence that an entrance was made (even in the night-time) 89 through an open door," or transom," or through any opening already existing, and not forcibly made, will not sustain an allegation of breaking. Proof of the actual use of force in breaking in and entering is not always necessary. A verdict will stand, though it be not shown affirmatively that the premises were locked during the period in which the breaking in must have occurred, and the only proof is that property was missed from a building, such as a stable, in which horses were confined, which would have escaped had not the door been locked." If there is no evidence tending to show that the entering was in the night-time the accused is entitled to an instruction that he should be acquitted if the jury believe that he entered in the day-time."3

Where a building was left apparently unoccupied, no presumption obtains that a person found in it, attempting to commit a felony, had not broken, but had secreted himself therein." The entrance must have been without the owner's consent to constitute a burglary.93a Non-consent need not be proved by direct evidence, but may be inferred from the circumstances. If the ac

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I Hale P. C. 553; State v. Scripture, 42 N. H. 485; Lowder v. State, 63 Ala. 143, 146.

Hays v. State, 51 Tex. Cr. III, 100 S.
W.926.

93 Henderson v. State, 50 Tex. Cr.

So Williams v. State (Tex. App., 620, 99 S. W. 1001. 1890), 13 S. W. 609.

90 Costello v. State (Tex. Cr. App.), 21 S. W. 360; Newman v. State, 55 Tex. Cr. 273, 116 S. W. 577; Lockhart v. State, 3 Ga. App. 480, 60 S. E. 215; Carroll v. State, 48 Tex. Cr. 155, 86 S. W. 1012; Pinson v. State (Ark., 1909), 121 S. W. 751. If the door of a storehouse is open when the accused enters and he picks up the property for the purpose of returning it to the owner and not for the purpose of stealing it he is not guilty of burglary. Fields v. State (Tex. Cr. App., 1903), 74 S. W. 309.

93a United States v. Lantry, 30 Fed. 232.

"Van Walker v. State, 33 Tex. Cr. 359, 26 S. W. 507; State v. Hayes, 105 Mo. 76, 84, 16 S. W. 514, 24 Am. St. 360. A detective employed to discover persons suspected of burglary, ingratiated himself into the confidence of the defendants, loaned them money and finally suggested that they should engage in burglary. He then arranged with the owner of the building that marked money should be placed in a safe, and having made the defendants drunk he took them to

McGrath v. State, 25 Neb. 780, the building, opened the safe and

41 N. W. 780.

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taking out the money handed it to them, and it was divided among the

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