not to be depended upon because of the fact that the dogs were not acquainted with the scent or were confused by the crowds, or to show any other relevant fact.28 30 § 375. Burglarious tools in possession of the accused.—It may usually be shown that burglars' tools were found on the person of the accused,29 in his dwelling, in a trunk shown to be his, or in his constructive possession and control at or about the time of his arrest, particularly where it is shown that such tools were used in the perpetration of the crime. But evidence that after the commission of the crime the room occupied by the accused was searched and no burglars' tools or implements, files or keys is not admissible to prove innocence.31 All the details of the finding, including the declarations of the accused, may be proved, and it is immaterial that the tools found were not adapted to the burglarious act alleged.32 It may also be shown that burglars' tools similar to others found in the defendant's possession were discovered in the premises which had been burglariously entered.33 The purpose and object of the possession of articles or tools which, though usually employed for lawful purposes, may be used by burglars, are always for the jury. It may be shown that chloroform was found in the possession of the accused, or in his house after the crime where chloroform was used in the commission of the crime, and the occupant of the house may testify that he smelled chloroform when he was aroused, though he is not an expert.35 34 § 376. Other burglarious acts.-Evidence that the defendant had committed, or had attempted,35a or had planned to commit, similar offenses on the same or on other premises,37 is admissible, when the circumstances of time and place attendant upon both crimes are connected and form a part of one criminal system or transaction.38 Evidence of a separate and distinct burglary is not admissible39 unless introduced solely to prove the defendant's whereabouts on the night of the crime in issue. 40 § 377. The felonious intention present in entering.-The entrance must have been made with a felonious and unlawful intention. The intention of the accused to commit some felony in the premises broken in must be shown," specifically, as alleged in the indictment. The fact that a felony was actually committed by the accused in the house is strong prima facie evidence that he entered 42 Cook v. State, 80 Ark. 495, 97 S. 40 People v. Mead, 50 Mich. 228, 15 W. 683. N. W. 95; State v. Fitzsimon, 18 Dawson v. State, 32 Tex. Cr. 535, R. I. 236, 27 Atl. 446, 448, 49 Am. 25 S. W. 21, 40 Am. St. 791. Marshall v. State (Tex., 1893), 22 S. W. 878. A police officer may testify that certain tools and other articles found in the house of the accused were such as burglars ordinarily use, and may testify how they were used. 28 And mendicant cards found in the house at the same time are relevant to show the occupation of the accused. Commonwealth v. Johnson, 199 Mass. 55, 85 N. E. 188. 'Frazier v. State, 135 Ind. 38, 40, 34 N. E. 817; State v. Robinson, 35 S. Car. 340, 14 S. E. 766; State v. Weldon, 39 S. Car. 318, 17 S. E. 688, 24 L. R. A. 126n; People v. Mead, 50 Mich. 228, 15 N. W. 95; Eley v. State (Tex., 1890), 13 S. W. 998; ante, 88, et seq. People v. McNutt, 64 Cal. 116, 28 Pac. 64; People v. Greenwall, 108 N. Y. 296, 301 (murder), 15 N. E. 404, 2 Am. St. 415; People v. White, 3 N. Y. Cr. 366. Proof of other crimes, see 62 L. R. A. 193, note. See also, Elliott Evidence, § 2917. St. 766. The loss of articles other than those mentioned in the indictment may be shown. Walker V. State, 5 Ga. App. 430, 63 S. E. 534. 41 Ashford v. State, 36 Neb. 38, 40, 53 N. W. 1036; State v. Meche, 42 La. Ann. 273, 7 So. 573; Harris v. State, 51 Tex. Cr. 564, 103 S. W. 390; Jones v. State, 48 Tex. Cr. 336, 87 S. W. 1157; Johnson v. State, 52 Tex. Cr. 201, 107 S. W. 52; Moore v. State, 52 Tex. Cr. 364, 107 S. W. 355. Evidence of the intent, see Elliott Evidence, § 2915; 2 Am. St. 396, note. 42 2 Miller v. State, 28 Tex. App. 445, 446, 13 S. W. 646; State v. Taylor, 136 Mo. 66, 37 S. W. 907; Moore v. State (Tex., 1896), 37 S. W. 747. The intent is a question for the jury. Woodward v. State, 54 Ga. 106, 107; Franco v. State, 42 Tex. 276, 281; Clifton v. State, 26 Fla. 523, 525, 7 So. 863; Commonwealth v. Williams, 2 Cush. (Mass.) 582; People v. Hope, 62 Cal. 291, 296; State v. Wright (Del., 1907), 66 Atl. 364; Trevenio 45 43 47 44 it with a felonious intention. If the entrance and the commission of a felony on the premises are shown, the jury will be justified in inferring a criminal intention in entering. The burglarious intention may be inferred from many other circumstances in evidence. So, if it is proved that the accused induced, or attempted to induce, the custodian of the premises to absent himself, or entered the building after dark, and was found there with burglars' tools, or with implements by which it is apparent from the evidence that the breaking into was effected, or keys which will open the doors of the building, in his possession, or was discovered engaged in ransacking a trunk,*8 or in putting aside articles of value, and, when discovered, made a hasty and immediate flight through an open window,51 or attempted to conceal himself,52 or was found running along a neighboring road soon after a burglary had been attempted, a criminal intent may be inferred. Hence these circumstances and others of a similar character are relevant, with other evidence, to show a burglarious intent. The accused must be allowed to account for his presence in the house, and his explanation may be considered by the jury in the light afforded by the other evidence.54 49 v. State (Tex. Cr., 1897), 42 S. W. 594. A specific intent to commit larceny may be inferred from proof of a breaking in, and of the presence of valuables in the house. Steadman v. State, 81 Ga. 736, 8 S. E. 420. 43 Stokes v. State, 84 Ga. 258, 263, 10 S. E. 740; State v. Wilkes, 82 S. Car. 163, 63 S. E. 688; Vance v. Commonwealth (Ky.), 115 S. W. 774; Jenkins v. State (Fla., 1909), 50 So. 582. 44 53 Clifton v. State, 26 Fla. 523, 525, 7 So. 863. 50 Hill v. Commonwealth (Ky.), 15 S. W. 870, 12 Ky. L. 914. Alexander v. State, 31 Tex. Cr. 359, 362, 20 S. W. 756. Wright v. Commonwealth, 82 Va. 45 62 ion. People v. Hagan, 14 N. Y. S. 233. 63 Steadman v. State, 81 Ga. 736, 8 S. E. 420. People v. Griffin, 77 Mich. 585. People v. Calvert, 22 N. Y. S. 587, 43 N. W. 1061; State v. Perry, 220, 67 Hun 649, without opinion. 124 La. 931, 50 So. 799. § 378. Presumption from possession of stolen property.-It has been held that a person in whose possession money or goods were found, recently taken from premises which had been broken in, would be presumed from possession alone as matter of law, at least in the absence of a valid explanation, guilty not only of larceny, but of the burglary as well.55 The large majority of the cases, however, while admitting that recent possession alone may in some circumstances create a presumption of larceny, repudiate this doctrine as regards burglary. The true rule doubtless is that the mere possession of stolen property creates no presumption of law that the person in whose possession it was found committed the burglary in which they were taken. The possession is a circumstance to go to the jury, and its weight is for them. The corpus delicti of the burglary, that is, the breaking in and entering, must be proved by independent evidence and can not be presumed from evidence of mere possession.56 If it appears that a burglary was in fact committed, the possession by the accused is a circumstance from which, in connection with all the evidence, the jury may presume as a matter of fact that he committed it."7 Commonwealth V. Millard, I Mass. 6; State v. Toohey, 203 Mo. 674, 102 S. W. 530; Scott v. State, 122 Ga. 138, 50 S. E. 49. Where property had been stolen by means of a burglary, and recently thereafter the property is found in the possession of another, the latter is presumed to be the thief and to have used all means necessary to have secured access to and possession of such property, and, if he fails to account for his possession in a manner consistent with his innocence, or to overcome the presumption by direct or circumstantial evidence, a verdict of guilty of larceny and burglary is authorized. State v. James, 194 Mo. 268, 92 S. W. 679. See Elliott Evidence, § 2918; 12 L. R. A. (N. S.) 200, note. Burden of proof and presumption in prosecution for burglary, see 2 Am. St. 397, note; 57 IOI Am. St. 482, note; Elliott Evidence, § 2910. 57 Lester v. State, 106 Ga. 371, 32 S. E. 335, and see cases in next note. King v. State, 99 Ga. 686, 26 S. E. 480; State v. Conway, 56 Kan. 682, 44 Pac. 627; Metz v. State, 46 Neb. 547, 65 N. W. 190; State v. Ham, 98 Iowa 60, 66 N. W. 1038; Porterfield v. Commonwealth, 91 Va. 801, 22 S. E. 352; State v. Blue, 136 Mo. 41, 37 S. W. 796; State v. Wilson, 137 Mo. 592, 39 S. W. 80; State v. Jennings, 79 Iowa 513, 44 N. W. 799; State v. Reid, 20 Iowa 413, 420, 421; State v. Owsley, III Mo. 450, 20 S. W. 194; Neubrandt v. State, 53 Wis. 89, 90, 9 N. W. 824; People v. Carroll, 54 Mich. 334, 20 N. W. 66; Dawson v. State, 32 Tex. Cr. 535, 25 S. W. 21; Goldsmith v. State, 32 Tex. Cr. 112, 22 S. W. 405; Threadgill v. State, 32 Tex. Cr. 451, The relevancy of the possession of articles taken from the premises is to a certain extent due to the fact that the possession shows that the accused has been in the premises. The possession may, and in most cases does, show a criminal intent, i. e., the intent to steal, where proof of this intent is necessary. But even where proof of an intent to steal is not alleged evidence of recent possession after the breaking in is competent to identify the person who did it.58 The possession by one of several jointly indicted for burglary is the possession of all, and may be proved against any or all,5o and possession by all those jointly charged may be proved on the trial of any one of them. But in burglary, as in the kindred offense of larceny, the possession of the defendant must be personal and exclusive and unexplained, and must involve a conscious assertion of ownership by him. He should always be permitted to explain how he obtained the property, and if 24 S. W. 511; People v. Ah Sing, 59 Cal. 400; People v. Titherington, 59 Cal. 598; People v. Cline, 74 Cal. 575, 16 Pac. 391; State v. Frahm, 73 Iowa 355, 35 N. W. 451; State v. Rivers, 68 Iowa 611, 27 N. W. 781; People v. Wood, 99 Mich. 620, 58 N. W. 638; Stuart v. People, 42 Mich. 255, 3 N. W. 863; State v. Moore, 117 Mo. 395, 22 S. W. 1086; Brooks v. State, 96 Ga. 353, 23 S. E. 413; State v. Rights, 82 N. Car. 675, 678; Methard v. State, 19 Ohio St. 363; Davis v. State, 76 Ga. 16; State v. Raymond, 46 Conn. 345; Magee v. People, 139 Ill. 138, 28 N. E. 1077; Gravely v. Commonwealth, 86 Va. 396, 401, 403, 10 S. E. 431; Wright v. Commonwealth, 82 Va. 183, 188; Ryan v. State, 83 Wis. 486, 53 N. W. 836; Davis v. People, 1 Park. Cr. (N. Y.) 447, 452; Sahlinger v. People, 102 Ill. 241; Hays v. State, 51 Tex. Cr. 111, 100 S. W. 926; State v. Dale, 141 Mo. 284, 42 S. W. 722, 64 Am. St. 513; Lynne v. State, 53 Tex. Cr. 386, III S. W. 151; Johnson v. State, 52 Tex. Cr. 201, 107 S. W. 52; Davis v. State, 45 Tex. Cr. 166, 74 S. W. 919; Quong Yu v. Territory (Ariz., 1909), 100 Pac. 462; State v. Vierck (S. Dak., 1909), 120 N. W. 1098; People v. King, 4 Cal. App. 213, 87 Pac. 400; Davidson v. State, 104 Ga. 761, 30 S. E. 946; Richardson v. State (Tex. Cr., 1897), 42 S. W. 996; Collier v. State, 55 Fla. 7, 45 So. 752; State v. Hullen, 133 N. Car. 656, 45 S. E. 513; State v. Peach, 70 Vt. 283, 40 Atl. 732; State v. Toohey, 203 Mo. 674, 102 S. W. 530; State v. Beeman, 51 Wash. 557, 99 Pac. 756; Cuthbert v. State, 3 Ga. App. 600, 60 S. E. 322; Collier v. State, 55 Fla. 7, 45 So. 752; State v. Brady, 121 Iowa 561, 97 N. W. 62; Thompson v. State (Fla., 1909), 50 So. 507; People v. Everett, 242 Ill. 628, 90 N. E. 226; State v. Short (Del., 1909), 75 Atl. 787. 59 Walker v. State, 5 Ga. App. 430, 63 S. E. 534. 50 State v. Toohey, 203 Mo. 674, 102 S. W. 530; Herndon v. State, 50 Tex. Cr. 552, 99 S. W. 558; State v. Leonard, 135 Iowa 371, 112 N. W. 784. "People v. Wilson, 133 Mich. 517, 95 N. W. 536, 10 Det. Leg. N. 287. |