15 So. 2d 285 | Miss. | 1943
Appellant was convicted of an attempt to commit burglary with an intent to steal. The acts on which the charge is predicated are the following: The owner of the premises, Mrs. Burt, testified that the defendant came to her home at one o'clock in the morning and awakened her "knocking at the back door." She roused her son, turned on a light, and demanded to know who was there. The defendant replied: "Open the door. I am coming in." The question was repeated with the same answer. Her son likewise demanded who he was, and the defendant replied: "Open the door and let me in." The son fired a pistol shot, whereupon the defendant went to a window "knocking at the house." The son then shot four times and called to others to help locate or apprehend defendant.
The defendant went away after the shots were fired, and despite his knowledge that the house was occupied and defended, he returned in about an hour. The son fired at him again and he fled. He was soon afterwards caught and explained that he did not know what he was doing. The town marshal testified that when he arrested the defendant he was drunk, and further that he was "a bad drinker" and had often been arrested for drunkenness. The door to the home had been fastened with wooden buckles and had been broken open by defendant. There was no entry. The defendant had no tools nor weapons on his person.
Upon this testimony the defendant was convicted of an attempt at burglary. If the conviction is to be affirmed as against the motion for a directed verdict, it must be sustained upon proof beyond all reasonable doubt that the defendant intended to commit the crime of larceny therein as charged in the indictment.
It is true that in Moseley v. State,
The circumstances in the instant case must furnish the only background for decision, and must be assayed with a view to determining whether there remain traces of reasonable doubt as to a larcenous intent. The facts are more nearly parallel to those in Jones v. State,
Under the entire circumstances here presented, we believe there was no warrant to find beyond all reasonable doubt that the defendant was attempting to carry out a *345
burglarious intent to commit the only crime which would justify conviction here, that is, an intent to commit larceny. State v. Buchanan,
Reversed, and appellant discharged.