it is not burglary if the intent is to have sexual intercourse with a woman with her consent, or to commit adultery, where that offense is not a felony,45 or to commit an assault or assault and battery not amounting to a felony,46 or merely to destroy or damage property in the building,47 or to take property under such circumstances that the taking will not constitute robbery or larceny,48 or will merely constitute petit larceny, where that offense is a misdemeanor.49 And for the same reason a person is not guilty of burglary if he enters Texas. Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258. West Virginia. State v. Shores, 31 W. Va. 491. England. Dobb's Case, 2 East P. C. 513; Rex v. Knight, 2 East P. C. 510. The intent may be to commit a statutory felony. 1 Hawk. P. C. c. 38, § 19; Dobb's Case, 2 East P. C. 513. 44 Harvey v. State, 53 Ark. 425, 14 S. W. 645; Hays v. State, 86 Tex. Cr. 469, 217 S. W. 938. 45 Robinson v. State, 53 Md. 151, 36 Am. Rep. 399; State v. Cooper, 16 Vt. 551. 46 To tar and feather a man. Hawk, P. C. c. 38, § 18. 1 Cutting off a man's ear is not mayhem at common law, and to break and enter a house with intent to do so is not burglary. See Com. v. Newell, 7 Mass. 245, where it was held that a breaking and entry with such an intent was not burglary, though a statute made it mayhem to cut off a man's ear, as the statute did not make it a felony. 47 Vickery v. State, 62 Tex. Cr. 311, 137 S. W. 687, Ann. Cas. 1913 C 514. 48 McCourt v. People, 64 N. Y. 583. And see State v. Nelson, 36 Wash. 126, 78 Pac. 790, 68 L. R. A. 283, 104 Am. St. Rep. 945. Thus, it is not burglary to break and enter with intent to take property that is not the subject of larceny. State v. Lymus, 26 Ohio St. 400. Or to take property, not animo furandi, but under a bona fide claim of right or merely to use and then return it. State v. Ryan, 12 Nev. 401, 28 Am. Rep. 802; State v. Shores, 31 W. Va. 491, 7 S. E. 413. That answers to examination questions are stolen and others substituted with the consent of the person who wrote them is no defense, since the writer's property in them ceased when he delivered them to the examiner. Norman v. State, 13 Ala. App. 337, 69 So. 362. One may be convicted of burglary for breaking into a freight car and stealing part of an interstate shipment of whisky, although the whisky cannot lawfully be sold in the state where the burglary takes place if it may lawfully be sold elsewhere, for in such case its possession is not unlawful and its value is not destroyed. Wiley v. State, 17 Ala. App. 7, 81 So. 343. 49 Harvick v. State, 49 Ark. 514, 6 S. W. 19; People v. Murray, 8 Cal. 520; Wood v. State, 18 Fla. 967; State v. Ringer, 84 W. Va. 546, 100 S. E. 413. A breaking and entry with intent to commit larceny is none the less burglary because there is not enough in the house to make the taking grand larceny, if the burglar does not know this, for, as we shall see, the intended felony need not be consummated. See § 480, infra. with a burglar merely as a detective for the purpose of fastening the guilt on his associate.50 The common-law rule as to the intent has been modified by statute in a number of states. Some of the statutes, for example, punish as burglary or a separate offense a breaking and entry or an entry with intent to commit a felony or petit larceny or theft, or to steal property of any value,51 or to commit any crime or public offense, 52 or to commit a misdemeanor,53 in which case the intent prescribed by the statute must be alleged and proved. And under some statutes intent to commit a crime is not an essential element of the offense.54 If an entry is made with part of the body, as where the head or 50 Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139; Price v. People, 109 Ill. 109. See also Rex v. Dannelly, 2 Marsh. 571, Russ. & R. 310. Where the breaking and entering is done by a person acting as a detective for the purpose of entrapping the defendant, the latter cannot be convicted as an aider and abettor. State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360. See also §§ 473, 474, supra. California. People v. Barnhart, 59 190 Pac. 473. Idaho. State v. Dwyer, 33 Idaho 224, 191 Pac. 203. Illinois. Gillock v. People, 171 Ill. 307, 49 N.. E. 712. Louisiana. State v. Curtis, 116 La. 749, 41 So. 58. Montana. State v. Carroll, 13 Mont. 246, 33 Pac. 688. Nebraska. Schultz v. State, 88 Neb. 613, 130 N. W. 105, 34 L. R. A. (N. S.) 243; Wheeler v. State, 79 Neb. 491, 113 N. W. 253. 30. Nevada. State v. Watkins, 11 Nev. Texas. Nalls v. State, 87 Tex. Cr. 83, 219 S. W. 473. Shackelford v. State, 83 Tex. Cr. 371, 203 S. W. 600; Cox v. State, 81 Tex. Cr. 90, 194 S. W. 138; Hamilton v. State, 11 Tex. App. 116. It is sufficient if the defendant entered with intent to steal anything to be found therein which he might desire to appropriate. It is not necessary to show that, when he entered, he knew that the property he took was there, or that there was any specific article there which he desired to appropriate. State v. Dwyer, 33 Idaho 224, 191 Pac. 203. 52 State v. Burns, - Iowa 179 N. W. 843; State v. Cook, 188 Iowa 655, 176 N. W. 674; State v. Hall, 168 Iowa 221, 150 N. W. 97; State v. Mecum, 95 Iowa 433, 64 N. W. 286; State v. Fox, 80 Iowa 312, 45 N. W. 874, 20 Am. St. Rep. 425; Carothers v. State, 121 Miss. 762, 83 So. 809; Cunningham v. State, 16 Okla. Cr. 151, 181 Pac. 317. 53 McNair v. State, 61 Fla. 35, 55 So. 401; Jenkins v. State, 58 Fla. 62, 50 So. 582. 54 Forsythe v. State, 6 Ohio 19. In Iowa it is not an element of the offense of breaking and entering a railroad car, under one of the two statutory provisions on the subject, but is under the other. State v. Burns, Iowa - - 179 N. W. 843. hand is inserted into the house, it is sufficient, though the entry may be merely for the purpose of effecting a further entrance, as by undoing a fastening, provided the ultimate object is to commit a felony in the house. In other words, the entry in such a case need not be for the immediate purpose of committing the intended felony.55 And there is also a sufficient entry if an instrument is inserted for the purpose of committing a felony.56 But if an instrument is inserted merely for the purpose of procuring admission to the house, and not for the purpose of committing the intended felony, and no part of the body enters, there is not a sufficient entry.57 The indictment may allege an intent to commit two or more offenses, in which case a conviction may be had on proof of an intent to commit any one of them.58 § 478. Time. The intent must have existed at the time of the breaking and entering, and there is no burglary if it was not formed until after the breaking and entering were complete,59 or until after the entry, in those states where breaking is not an essential element of the offense.60 Nor is it burglary where there is a breaking with felonious intent, followed by an entry without such an intent, or a breaking without, followed by an entry with, such an intent.61 The intent need not have existed before the breaking, however, but may be formed at the moment when the breaking occurs, 62 and if it existed at the time of the breaking and entry, it is burglary though the intent was abandoned after the entry was effected.63 55 Com. v. Glover, 111 Mass. 395; Franco v. State, 42 Tex. 276; Nash v. State, 20 Tex. App. 384, 54 Am. Rep. 529; Rex v. Perkes, 1 Car. & P. 300; Reg. v. O'Brien, 4 Cox C. C. 398. And see the dictum in Walker v. State, 63 Ala. 49, 35 Am. Rep. 1. 56 See § 465, supra. 57 Walker v. State, 63 Ala. 49, 35 Am. Rep. 1; Rex v. Roberts, 2 East P. C. 487; Hughes' Case, 1 Leach C. C. 406. And see Reg. v. O'Brien, 4 Cox C. C. 398. 58 Harvey v. State, 53 Ark. 425, 14 S. W. 645, 22 Am. St. Rep. 229; State v. Fox, 80 Iowa 312, 45 N. W. 874, 20 Am. St. Rep. 425; Alexander v. State, 31 Tex. Cr. 359, 20 S. W. 756. 59 Jackson v. State, 102 Ala. 167, 15 So. 344; State v. Bowden, 175 N. C. 794, 95 S. E. 145. 60 People v. Brittain, 142 Cal. 8, 75 Pac. 314, 100 Am. St. Rep. 95; State v. Green, 15 Mont. 424, 39 Pac. 322. As to the necessity for a breaking, see § 463, supra. 61 Colbert v. State, 91 Ga. 705, 17 S. E. 840; State v. Moore, 12 N. H. 42. 62 Jackson v. State, 102 Ala. 167, 15 So. 344. 63 See § 480, infra. Intent inferred from circumstances. The intent must § 479. always be proved, so as to show that it was felonious, but it may be inferred from the circumstances.64 An intent to commit a felony at the time of the breaking and entry may very clearly be inferred from its actual commission after the entry.65 And it may also be inferred from the conduct of the accused though no felony is committed,66 since the actual commission of the intended felony is not an essential element of the offense.67 So an intent to commit rape, or to commit 64 Arkansas. Harvick v. State, 49 Ark. 514, 6 S. W. 19. Delaware. State v. Manluff, Houst. Cr. Cas. 208. Georgia. Steadman v. State, 81 Ga. 736, 8 S. E. 420. Iowa. State v. Cook, 188 Iowa 655, 176 N. W. 674; State v. Hall, 168 Iowa 221, 150 N. W. 97; State v. Teeter, 69 Iowa 717, 27 N. W. 485; State v. Maxwell, 42 Iowa 208. Kentucky. Hayes v. Com., 171 Ky. 291, 188 S. W. 415. Michigan. People V. Griffin, 77 Mich. 585, 43 N. W. 1061. Missouri. State v. Horn, 209 Mo. 452, 108 S. W. 3. New York. People v. Marks, 4 Park. Cr. 153. North Carolina. State v. McBryde, 97 N. C. 393, 1 S. E. 925; State v. McDaniel, 1 Winst. 249. Texas. Franco v. State, 42 Tex. 276; Williams v. State, 65 Tex. Cr. 82, 143 S. W. 634; Alexander v. State, 31 Tex. Cr. 359, 20 S. W. 756; Burke v. State, 5 Tex. App. 74. And see the other cases cited in the following notes. Where accused bored a hole with an auger into a granary and allowed grain to fall out, which he carried away, the intent to steal was sufficiently shown, though gravitation cooperated in its removal. State V. Crawford, 8 N. D. 539, 80 N. W. 193, 30. Nevada. State v. Watkins, 11 Nev. New Hampshire. State v. Moore, 12 N. H. 42. Texas. Meredith v. State, 85 Tex. Cr. 239, 211 S. W. 227; Lewis v. State, 72 Tex. Cr. 377, 162 S. W. 866. 66 Thomas v. State, 107 Ark. 469, 155 S. W. 1165. 67 Birones v. State, 105 Ark. 82, 150 S. W. 416; Warren v. State, 103 Ark. 165, 146 S. W. 477, Ann. Cas. 1914 B 739; Harvey v. State, 53 Ark. 425, 14 S. W. 645, 22 Am. St. Rep. 229; Hayes v. Com., 171 Ky. 291, 188 S. W. 415; State v. Bowden, 175 N. C. 794, 95 S. E. 145; State v. Boon, 13 Ired. (N. C.) 244, 57 Am. Dec. 555. And see State v. Worthen, 111 Iowa 267, 82 N. W. 910; Hays v. State, 86 Tex. Cr. 469, 217 S. W. 938; adultery,68 or larceny,69 is inferable from acts indicating such intention. Proof that the accused broke and entered a house is often held to raise a presumption that he did so with intent to commit a crime therein, in the absence of any showing to the contrary, especially when such breaking and entry were in the nighttime.70 And it has often been held that such a showing warrants a presumption or inference that he intended to commit larceny or theft, though when detected he had not appropriated any property." But it has also been held that no such intent can be inferred from a mere attempt to break and enter.72 Hamilton v. State, 11 Tex. App. 116, where the evidence was held insufficient to justify a finding of such an intention. 68 State v. Mecum, 95 Iowa 433, 64 N. W. 286. 69 Walker v. State, 44 Fla. 466, 32 So. 954; Brown v. State, 85 Miss. 27, 37 So. 497. 70 The Florida statute makes proof of entering a dwelling house in the nighttime, stealthily and without the consent of the owner or any occupant thereof, prima facie evidence of an intent to commit a misdemeanor in the absence of proof of intent to commit any specific crime. The defendant may rebut this presumption by proper proof, as by showing that he was too drunk to entertain such an intent. McNair v. State, 61 Fla. 35, 55 So. 401; Jenkins v. State, 58 Fla. 62, 50 So. 582. The statute does not apply where the entry was in the daytime. Walker v. State, 44 Fla. 466, 32 So. 954. 71 Arkansas. Birones v. State, 105 Ark. 82, 150 S. W. 416; Ragland v. State, 71 Ark. 65, 70 S. W. 1039. California. People v. Soto, 53 Cal. 415. Florida. See Walker v. State, 44 Fla. 466, 32 So. 954. Intent to commit petit larceny is not necessarily implied from the simple fact of breaking and entering, but the question whether the defendant had such intent is a question of fact to be decided by the jury from all the circumstances of the case. McNair v. State, 61 Fla. 35, 55 So. 401; Jenkins v. State, 58 Fla. 62, 50 So. 582. Georgia. Steadman v. State, 81 Ga. 736, 8 S. E. 420. Iowa. State v. Worthen, 111 Iowa 267, 82 N. W. 910; State v. Fox, 80 Iowa 312, 45 N. W. 874, 20 Am. St. Rep. 425; State v. Maxwell, 42 Iowa 208. But see State v. Cook, 188 Iowa 655, 176 N. W. 674; State v. Bell, 29 Iowa 316. In State v. Teeter, 69 Iowa 717, 27 N. W. 485, it was held to be proper to consider that the building was broken and entered in connection with all the circumstances. North Carolina. State v. McBryde, 97 N. C. 393, 1 S. E. 925. Texas. Meredith v. State, 85 Tex. Cr. 239, 211 S. W. 227; Love v. State, 82 Tex. Cr. 411, 199 S. W. 623, and cases cited; Vickery v. State, 62 Tex. Cr. 311, 137 S. W. 687, Ann. Cas. 1913 C 514; Williams v. State, 65 Tex. Cr. 82, 143 S. W. 634; Alexander v. State, 31 Tex. Cr. 359, 20 S. W. 756. 72 State v. Cook, 188 Iowa 655, 176 N. W. 674. |