whenever the case is brought to their attention. In the black catalogue of crimes there is none which so shocks all men as the one under consideration; none should be more severely punished. But we can not permit even a slave to be punished without the full benefit of the law as it is, either under the influence of popular feeling, or our own abhorrence at his acts. The question with us should ever be, not what the offense deserves, nor what our feelings and individual feelings would dictate, but "what sayeth the law?" "3 We need not now go back into the books of the common law for a definition of felonies; they are given in our Penitentiary Code.1 It declares, that "burglary is the breaking and entering into a mansionhouse by night, with intent to commit a felony." "Rape is the unlawful carnal knowledge of a woman, forcibly and against her will." 4 "Any assault and battery upon any female, with intent forcibly and against her will, to have unlawful carnal knowledge of such female," is a felony. By the act of 1819: 5 "Murder, arson, burglary, rape and robbery, shall, when committed by a slave, be deemed capital offenses, and punished with death; provided, that the punishment in no case shall extend to life or limb, except in the cases above enumerated." 6 By the act of 1835,7 it is enacted, "that any slave who shall commit an assault or battery upon any free white person, with intent to commit murder in the first degree, or a rape upon a free white woman, shall, on conviction, be punished with death by hanging."1 The act of 1833,9 is to the same effect, except that it applies to free negroes, as well as slaves, but seems to require, in addition to the assault, that some violence to the person must be committed to constitute the offense. An assault then, with intent to commit a rape, is a capital felony in a slave. But what is the offense that he must intend to commit? It is rape; and the law defines that crime to be the forcible carnal knowledge of a female. To break into and enter a mansion-house by night, "with intent to commit a felony," is burglary, which is a capital offense in a slave. The intent to commit a rape, or to make an assault with that intent, is a capital felony in a slave. But the intent is as essential as the act, to constitute that felony; and to make out that felony, the intent must be to have the unlawful carnal knowledge of the woman forcibly and against her will." But the law is laid down differently in the charge, in this case. Actual force is excluded, as an essential element of the crime. His honor declares the law to be, that if his intent was, to accomplish his object by fraudulently inducing the 66 1 Act 1829, ch. 23. 2 sec. 19. 3 sec. 13. 4 sec. 53. 5 ch. 35, sec. 1. 6 Car. & Nich. 679. 7 ch. 19, sec. 10. 8 Car. & Nich. 683. 9 ch. 75. lady to believe he was her husband, and in that way attempted to have carnal knowledge of her, the offense would be complete. The idea of force as one ingredient of the offense, according to all the definitions in our acts, and in all the criminal authorities, is entirely discarded in the instructions to the jury, and was well calculated to mislead them. We do not pretend to give or enunciate any opinion on the sufficiency or insufficiency of the proof in this case, to produce a conviction upon a correct charge of the law, upon all or any one of the counts in this indictment. That will be determined by another jury under a charge of the law as here expounded and settled. If he has forfeited his life let it be legally taken, and the law will be thereby honored, and public justice sustained. To these conclusions we are brought by an exposition of our own acts of Assembly. But we find the same principles laid down in the decided cases, and the works on criminal law to which we will only refer.1 In most of these cases, the precise point of this came up, and was decided as we now decide the question. The current of authority is almost, if not entirely, unbroken, on the subject. There is no respectable conflicting authority known to us. Fraud and stratagem, then, can not be substituted for force, as an element of this offense, according to the existing law. We are, then, constrained, for this error in the charge, to reverse the judgment, and remand the defendant for a new trial. The Defendants were Indicted for breaking and entering a tool-house with intent to commit larceny. The testimony showed that they broke into a tool house of a railroad company, took from it a hand-car, put it on the track and rode in it twelve miles and then removed it and left it at the side of the track. Held, that this did not establish the larcenous intent essential to constitute burglary. CONVICTION of burglary. The opinion states the facts. 11 Russ. on Cr. 677; Ros. Cr. Ev. 798; Saunder's Case, Eng. Com. L. Rep., 383; and William's Case, Id. 392; Field's Case, 4 Leigh, 648; 3 Chitty Cr. L. 810. BEATTY, J. The defendants in this action were convicted of burglary. They moved for a new trial on the ground that the verdict was contrary to the evidence; and they now appeal from the judgment and the order overruling their motion for a new trial. The charge in the indictment is that the defendants broke into a tool-house of the Central Pacific Railroad with intent to commit larceny. The bill of exceptions contains all the testimony which in any wise tended to establish the guilt of the defendants and it amounts simply to this: the three defendants and one other person (who gave evidence for the State) were traveling along the line of the railroad from California toward the Eastern States. They broke into a tool-house of the railroad company one night, took therefrom a hand-car, placed it on the track, propelled themselves a distance of twelve miles, removed the hand-car from the rails to the side of the track and then left it. This is the whole case. There was not a particle of proof, and there can be no presumption, that the defendants broke into the tool-house with any other intent or purpose than that of taking the hand-car and using it as they did use it. If such taking and use was not larceny, there was no proof that the breaking into the tool-house was with the intent to commit larceny and that essential element of the crime of which they were found guilty was not proved. 2 We have no doubt that the taking and use of the hand-car was not larceny. The attorney-general does not contend that it was, and the only case to which we have been referred as sustaining the ruling of the District Court is that of People v. Juarez,1 but that case does not sustain the action of the District Court. It merely follows the case of Rex v. Cabbage, which established the principle that where there is an intent to deprive the owner of his property, it is not essential that the taking should be with a view to pecuniary profit lucri causa. We acknowledge the correctness of this principle. A man may be guilty of larceny if he takes another man's whisky, intending to drink it, though it is certain he will not be a gainer, pecuniarily or otherwise by the transaction. But although there may be larceny without any intent on the part of the thief to profit himself, we do not know of a case where it has been held that there can be larceny without any intent to deprive the owner of his property. And that is the case here. There is not the slightest ground for supposing that those defendants intended to deprive the railroad company of its property in this hand-car. They committed a trespass but they are not guilty of burglary, The judgment and order of the District Court are reversed and the cause remanded. Remittitur forthwith. 1 28 Cal. 380. 2 R. & R. C. C. 292. BURGLARY - FELONIOUS INTENT NECESSARY. MCCOURT v. PEOPLE. [64 N. Y. 583.] In the New York Court of Appeals, 1876. M. with two Companions stopped at C.'s house and asked C.'s daughter, who was alone at home, for a drink of cider, offering to pay for it. She refused, and M. thereupon opened the cellar door, though forbidden to do so by her, went in and drew some cider, He had procured cider there before, and on this occasion was partly intoxicated. Held. that he could not be convicted of burglary and larceny. ERROR to the General Term of the Supreme Court, in the Third Judicial Department, to review a judgment of the Court of Sessions in and for the county of Essex, entered upon a verdict convicting plaintiff in error of the crime of burglary and larceny. The indictment contained three counts: First. Burglary in the second degree. Second. Burglary in the third degree. Third. Larceny. The intended crime charged in each count was to steal cider. On the 30th of September, 1871, between eight and eleven a. m., plaintiff in error with his brother and another companion stopped at the house of the prosecutor, Hinckley Cole, who was then absent from home. The prisoner was partially intoxicated; he had before stopped at the house and procured cider. The daughter of Cole came to the door, and he asked her for some cider, offering to pay for it. She refused to let him have any. There were two doors to the cellar, one opening out, the other about eighteen inches distant opening into the cellar. The evidence on the part of the prosecution tended to show that the latter was shut and latched. The prisoner said he would have some cider any way, and started to go down cellar. Miss Cole forbade him, and ordered him to leave the premises, but he went on into the cellar and drew some cider in a pail. His brother followed him into the cellar, took the cider away, and succeeded in getting him away from the premises. At the close of the evidence the prisoner's counsel requested the court to direct an acquittal. This the court refused and said counsel duly excepted. The jury rendered a general verdict of guilty. Samuel Hand, for the plaintiff in error. Nathaniel C. Moak, for the defendants in error. 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 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 offense was made out, viz., that the prisoner entered with intent to commit a crime.1 The material question in the case is, whether the evidence justified the 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 offense; 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.2 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 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 can not 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 12 Rev. Stats. 668, secs. 13, 18. 21 Hale's P. C. 509. |