of a letter of inquiry addressed to him, when taken in connection with the other established facts of the case, are competent.43

§ 2908. Defenses.-Ignorance of the law is not a defense in bribery cases any more than in other criminal cases, and it has been held that it was no defense for an officer charged with having accepted a bribe under an agreement not to seize gambling devices to show that he was ignorant of a statute making it his duty to seize them; and further, that it was no defense that the prosecuting witness gave the bribe and procured such omission of duty.44 Nor can the officer question the constitutionality of the statute, or the like. Evidence of good character and reputation is admissible in a prosecution for bribery, but it is no defense to the crime where the proof establishes its commission by the accused as a fact.46 It is not competent for a witness to testify that he had learned, since the arrest of the accused, that his reputation before his arrest was bad. In a prosecution for bribery where a specific intent is the essence of the crime intoxication may be shown in a proper case, and if drunkenness is set up as a defense in such a case the character and extent of the drunkenness, the conduct of the defendant and any other facts tending to show that he did not know what he was doing may generally be shown, and the question left to the jury. But to permit another witness to state that the accused was so drunk that he did not know what he was doing would be in violation of the rule forbidding witnesses to state mere opinions or conclusions which are for the jury to draw.49

43 Glover v. State, 109 Ind. 391, 10 N. E. 282.

"Newman v. People, 23 Colo. 300, 47 Pac. 278; see also as to instigation by others being no defense, People v. Liphardt, 105 Mich. 80, 62 N. W. 1022.

45 Newman v. People, 23 Colo. 300, 47 Pac. 278; State v. Gardiner, 54 Ohio St. 24, 42 N. E. 999, 31 L. R. A. 660; see also, State v. Duncan, 153 Ind. 318, 54 N. E. 1066; Glover

47

v. State, 109 Ind. 391, 10 N. E. 282; Gilchrist v. Schmidling, 12 Kans. 263; Moseley v. State, 25 Tex. App. 515, 8 S. W. 652.

46 Wellcome, In re, 23 Mont. 450, 59 Pac. 445.

47 People v. Fong Ching, 78 Cal. 169, 20 Pac. 396.

48 White v. State, 103 Ala. 72, 16 So. 63.

49 White v. State, 103 Ala. 72, 16 So. 63.

See.

CHAPTER CXXXVIII.

BURGLARY.

Sec.

2909. Generally-Definition and ele- 2913. Evidence as to dwelling house

ments.

2910. Burden of proof and presump

tions.

2911. Questions of law or fact.
2912. Evidence of breaking and en-
tering.

and ownership.

2914. Evidence as to time.
2915. Evidence as to intent.
2916. Identification.

2917. Other offenses.

2918. Possession of stolen property. 2919. Defenses.

§ 2909. Generally-Definition and elements.-Burglary is the breaking and entering the house of another in the night-time with the intent to commit a felony, whether the felony is actually committed or not.1 The elements to be proved at common law are: A felonious breaking and entering; that the building was a dwelling-house; that the act occurred in the night-time; an intention to commit some felony in the house. But under many of the modern statutes other buildings are included, as well as dwelling-houses, and under some of them the breaking and entry may be in the day-time as well as at night, while, under others, a breaking is not essential.

2

§ 2910. Burden of proof and presumptions.-The presumption of innocence existing, the burden is upon the prosecution to show the guilt of the accused beyond a reasonable doubt,3 and, according to the better and prevailing rule, this burden remains upon the prosecution throughout the trial. The prosecution must, in the absence of a stat

'Russell Crimes, 1; Anderson v. State, 48 Ala. 665, 666, 17 Am. R. 36; McVey, In re, 50 Neb. 481, 70 N. W. 51; 2 Am. St. 383, note.

* See, State v. Wilson, 1 N. J. L. 502, 1 Am. Dec. 216, and authorities cited in notes to the next section; also, see 2 Am. St. 383, note.

2 * People v. Winters, 93 Cal. 277, 28 Pac. 946; People v. Flynn, 73

Cal. 511, 15 Pac. 102; State v. Morris, 47 Conn. 179; State v. Manluff, 1 Houst. (Del.) 208; Farley v. State, 127 Ind. 419, 26 N. E. 898; Coleman v. State, 26 Tex. App. 252, 9 S. W. 609.

'Farley v. State, 127 Ind. 419, 26 N. E. 898, and other authorities cited in last note, supra; for a further consideration of this general

ute making a change in the elements of the crime, show that the building burglarized was a dwelling-house, or at least that it was within the curtilage. But whether the particular building in question was within the curtilage has been held to be a question of fact for the jury." So, the gist of the offense of burglary usually being the breaking and entering, that element must also be established beyond a reasonable doubt. And the burden is upon the prosecution not only to prove the burglarious entry, but also to show that such entry was made with intent to commit a felony as alleged.

8

rule, see, Vol. I, §§ 95. 126; State v. Brady, (Iowa) 91 N. W. 801, 805. B Moore v. People 47 Mich. 639, 11 N. W. 415; State v. Fisher, 1 Pen. (Del.) 303, 41 Atl. 208. But

it has been held that actual residence therein at the time of the alleged burglary need not be shown; Schwabacher v. People, 165 Ill. 618, 46 N. E. 809; State v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109; but compare the second case cited in this note. In, Holland v. State, (Tex. Cr. App.) 74 S. W. 763, evidence that the defendant burglarized a room in a hotel in which the prosecuting witness resided was held sufficient under an indictment charging that it was a private residence. See generally, 2 Am. St. 388, et seq.

"Wait v. State, 99 Ala. 164, 13 So. 584; as to what is considered within the curtilage generally, see, State v. Bugg, 66 Kans. 668, 72 Pac. 236; Shotwell v. State, 43 Ark. 345; People v. Griffith, (Mich.) 95 N. W. 719; Fisher v. State, 43 Ala. 17; Rex v. Garland, 1 Leach C. C. 144; 4 Blackstone Comm. 225; 1 Hale P. C. 558, § 9; 8 Am. & Eng. Ency. of Law (2d ed.) 527; ante, Chap. 132.

So, if the statute does not make

143, 35 Am. R. 9; Washington v. State, 21 Fla. 328; White v. State, 51 Ga. 285; People v. McCord, 76 Mich. 200, 42 N. W. 1106; State v. Warford, 106 Mo. 55, 16 S. W. 886, 27 Am. St. 322; McGrath v. State, 25 Neb. 780, 41 N. W. 780; State v. Cowell, 12 Nev. 337; but proof of very slight force may sustain conviction; May v. State, 40 Fla. 426, 24 So. 498; Sims v. State, 136 Ind. 358, 36 N. E. 278; State v. Reid, 20 Iowa 413; State v. Herbert, 63 Kans. 516, 66 Pac. 235; State v. Warford, 106 Mo. 55, 16 S. W. 886, 27 Am. St. 322; and, as will hereafter appear, it is sufficient in some cases to show a constructive breaking.

9

People v. Crowley, 100 Cal. 478, 35 Pac. 84; People v. Hope, 62 Cal. 291; State v. Carpenter, Houst. Cr. (Del.) 367; State v. Fisher, 1 Pen. (Del.) 303, 41 Atl. 208; Davis v. State, 22 Fla. 633; Schwabacher v. People, 165 Ill. 618, 46 N. E. 809; State v. Carroll, 13 Mont. 246, 33 Pac. 688; State v. Green, 15 Mont. 424, 39 Pac. 322; State v. Cowell, 12 Nev. 337; Coleman v. State, 26 Tex. App. 252, 9 S. W. 609; Walton v. State, 29 Tex. App. 163, 15 S. W. 646; Mitchell v. State, 33 Tex. Cr. App. 575, 28 S. W. 475; see also,

'State v. Hutchinson, 111 Mo. 257, Starchman v. State, 62 Ark. 538, 36 20 S. W. 34. S. W. 940; Rush v. State, 114 Ga. 113, 39 S. E. 941.

Lester v. State, 106 Ga. 371, 32 S. E. 335; Lowder v. State, 63 Ala.

a breaking and entering by daylight burglary, it must also be shown beyond a reasonable doubt that the breaking and entering were done in the night-time.10 As will be shown hereafter, however, circumstantial as well as direct evidence may be sufficient to establish one or more of these various elements in the particular case.

§ 2911. Questions of law or fact.-The question as to whether the essential elements exist in the particular case is usually for the jury to determine from the evidence, including such proper inferences as may be drawn therefrom. Thus, it is for the jury to determine whether the act was done in the night-time.11 So, the identity of the accused and of the property, the intent, and the like, are questions of fact for the jury.12 But the court should instruct as to what are the necessary elements of the crime and as to what is meant by them or what is necessary in law to constitute the crime.13

§ 2912. Evidence of breaking and entering.-In order to prove a breaking and entering, it is generally necessary to show that the house was closed,1 and evidence of the condition of the premises shortly before and after the commission of the alleged offense is usually competent. Thus, evidence that a window or door was found open at the time and that it had been left closed shortly before has been held suffi

10 People v. Flynn, 73 Cal. 511, 15 Pac. 102; People v. Taggart, 43 Cal. 81; Waters v. State, 53 Ga. 567; State v. Frahm, 73 Iowa 355, 35 N. W. 451; People v. Bielfus, 59 Mich. 576, 26 N. W. 771; Ashford v. State, 36 Neb. 38, 53 N. W. 1036; see also, Adams v. State, 31 Ohio St. 462; Reg. v. Nicholas, 1 Cox Cr. Cas. 218. "State v. Leaden, 35 Conn. 515; People v. Taylor, 93 Mich. 638, 53 N. W. 777; Davis v. State, 3 Coldw. (Tenn.) 77; see also, State v. Whit. 4 Jones L. (N. Car.) 349.

12 Commonwealth v. Chilson, 2 Cush. (Mass.) 15; People v. Smith, 92 Mich. 10, 52 N. W. 67; State v. Williamson, 42 Conn. 261; State v. Bell, 29 Iowa 316; People v. Winters, 93 Cal. 277, 28 Pac. 946; Schwabacher v. People, 155 Ill. 618, 46 N. VOL. 4 ELLIOTT Ev.-12

E. 809; Green v. State, (Tex. Cr.
App.) 58 S. W. 99.

13 Rose v. Commonwealth, 19 Ky. L. R. 272, 40 S. W. 245.

14 Kelly v. State, 82 Ga. 441; Green v. State, 68 Ala. 539; State v. Groning, 33 Kans. 18, 4 Pac. 446; McGrath v. State, 25 Neb. 780, 41 N. W. 780; Washington v. State, 21 Fla. 328; People v. McCord, 76 Mich. 200, 42 N. W. 1106; Jones v. State, 25 Tex. App. 226. Drawing a bolt, lifting a latch or opening with a key has been held sufficient evidence of a breaking. Kent v. State, 84 Ga. 438, 11 S. E. 355; State v. O'Brien, 81 Iowa 93, 46 N. W. 861; State v. Scripture, 42 N. H. 485; Hale P. C. 553; see also, Sims v. State, 136 Ind. 358, 36 N. E. 278.

cient evidence of a breaking.15 It has also been held competent to show that shoes or clothing belonging to the accused were found near by, and that, from appearances, force had been used to gain an entrance.16 And circumstantial evidence has been held sufficient in other cases to show both a breaking1 and an entry.18 The entrance must have been without the owner's consent, and circumstantial evidence has been held insufficient to show that he did not consent, in a few cases where the owner was present, and was a witness and did not testify upon the subject.19 But, ordinarily, it may be shown by circumstantial evidence.20

21

§ 2913. Evidence as to dwelling-house and ownership.-As already shown, the prosecution must prove that the building entered was a dwelling-house, or such a building as to come within the statute. Evidence is therefore competent as to the character and ownership of the premises.2 So, unless the statute is such as to make a variance as to the ownership of the premises immaterial, it must generally be proved as charged.22 But the ownership or value of property stolen or the like by the burglar is generally immaterial, and need not be proved precisely as alleged.23

15 People v. Curley, 99 Mich. 238, 58 N. W. 68; State v. Warford, 106 Mo. 55, 16 S. W. 886.

16 Fort v. State, 52 Ark. 180, 11 S. W. 959; England v. State, 89 Ala. 76, 8 So. 146; People v. Block, 60 Hun (N. Y.) 583, 15 N. Y. S. 229.

17 Holland v. State, 112 Ga. 540, 37 S. E. 887; Commonwealth v. Hagan, 170 Mass. 571, 49 N. E. 922; State v. Christmas, 101 N. Car. 749, 8 S. E. 361; State v. Bee, 29 S. Car. 81, 6 S. E. 911; United States v. Lantry, 30 Fed. 232.

18 State v. Watkins, 11 Nev. 30; for other cases in which the eviIdence was held sufficient to show a breaking and some in which it was held insufficient, see, 2 Am. St. 383387, note.

19 Ridge v. State, (Tex.) 66 S. W. 774; see also, Wisdom v. State, (Tex.) 61 S. W. 926; People v. Caniff, 2 Park. Cr. Cas. (N. Y.) 586.

20 State v. Hayes, 105 Mo. 76, 16 S. W. 514; Hurley v. State, 35 Tex. Cr. App. 359, 33 S. W. 354.

21 Houston v. State, 38 Ga. 165. 22 Jackson v. State, 102 Ala. 167, 15 So. 344; Berry v. State, 92 Ga. 47, 17 S. E. 1006; Rodgers v. People, 86 N. Y. 360, 40 Am. R. 548; Doan v. State, 26 Ind. 495; State v. McCarthy, 17 R. I. 370, 22 Atl. 282; James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. 527; State v. Hill, 48 W. Va. 132, 35 S. E. 831.

V.

23 State v. Tyrrell, 98 Mo. 354, 11 S. W. 734; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34; Brown State, 72 Miss. 990, 18 So. 431; McCrary v. State, 96 Ga. 348, 23 S. E. 409; Reg. v. Clarke, 1 Car. & Kir. 421, 47 E. C. L. 421; admissions of such evidence held harmless; Farley v. State, 127 Ind. 419, 26 N. E. 898; Pyland v. State, 33 Tex. Cr. App. 382, 26 S. W. 621.