Green v. State
68 Ala. 539
Ala.
1881
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BRICKELL, C. J.

Assuming the sufficiency of the indictment, and that it includes a charge of ‍​‌‌‌​​​​​​‌​‌‌​‌​‌‌‌‌​​‌​​​‌‌​​‌​​​‌​‌​​‌‌‌​‌‌‌‌‍burglary and of larceny, of either of whiсh a conviction could be had prop*541erly, the burden of proving the facts constituting either offеnse, it is not a mere truism to say, rested upon the State. If there was no proof baying a fair, legitimatе, reasonable tendency to prove that either offense had been committed, or, if‘either offense had been committed, connecting the accused with its commission, the court, on the written request of the accused, was bound so to instruct the jury. The statute, applicable to civil and criminal trials, requires the court, ‍​‌‌‌​​​​​​‌​‌‌​‌​‌‌‌‌​​‌​​​‌‌​​‌​​​‌​‌​​‌‌‌​‌‌‌‌‍on the request of one of. the parties, to charge upon the effect of the testimony (Code of 1876, § 3028), where there is no conflict in the evidence, whether it be direct or circumstantial, and it is wholly insufficient to warrant a judgment; or, if a demurrer to its sufficiency would be sustained, the court should, at the request of the party against whom it is introduced, charge directly that it is insufficient, and thаt the verdict of the jury should be for such party.

2. To constitute the offense of burglary, as charged in the indictment, there must have been evidence that the storehouse mentioned had been broken and еntered by the accused with the intent to steal. There must have been a substantial and forcible irruptiоn, connected with an entry. The degree of force may be very slight — it may consist in the mere unloosing or displacing of any fastening provided for the security of the ‍​‌‌‌​​​​​​‌​‌‌​‌​‌‌‌‌​​‌​​​‌‌​​‌​​​‌​‌​​‌‌‌​‌‌‌‌‍house ; still, there must be an actual or сonstructive breaking into the house. If the doors of a mansion-house, or of a store-house, are suffered to stand open, the man who enters without permission of the owner may be a trespassеr, and become a thief, but he is not a burglar. So, if a window is left open and unfastened, an entry through it, without fоrce or violence, is not burglarious.—2 Whart. Crim. Law, § 1532; Walker v. State, 63 Ala. 49. The only evidence touching the breaking and entry, introduсed in the court below, was that of one of the owners of the storehouse, that on the morning aftеr the supposed breaking he found a window open it was usual to keep closed; but he .could not say that it had been closed or fastened the previous night, and, on examination, he found no signs of a breaking or of an entry. If, in addition to the evidence that it was usual to keep the window shut or closеd at night, there ‍​‌‌‌​​​​​​‌​‌‌​‌​‌‌‌‌​​‌​​​‌‌​​‌​​​‌​‌​​‌‌‌​‌‌‌‌‍had been evidence proving force or violence employed to open it, and of an entry through, it, in the absence of all evidence of its condition at the precise time of the entry, the evidence may have authorized the inference that, at the time of the entry, it was closed. In the absence of.all such evidence, it is not a fair and reasonable inferеnce, that the windows were closed, and that there was a breaking, a forcible irruption of it. Conjеctures may be indulged; but mere *542conjectures, or suspicions, are not reasonable inference, ‍​‌‌‌​​​​​​‌​‌‌​‌​‌‌‌‌​​‌​​​‌‌​​‌​​​‌​‌​​‌‌‌​‌‌‌‌‍or presumption upon which to found convictions of crime.

3. Larceny consists in the fraudulent taking and carrying away, of the personal goods of another. Fraud, the taking and asportation, withоut the consent of the owner, and with the intent to divest his ownership, must all concur to constitute the offense. There was a want of all evidence tending to show that the goods specified had been fraudulently taken from the possession of the owner. As to a part of them, it is certain they were purchased from a clerk in the store. All that was shown was, that these goods were missed from the store — on еxamination, were not found there. This may have been true, and yet they may have been taken away without'fraud, or any invasion of the rights of the owner— they may have been sold.by some clerk, or by some оther of the proprietors than the one who testified as a witness. The mere fact that the goods were not in the store at a particular time, having been there previously, is not enough, of itself, on which to found a reasonable inference that they were stolen. The goods were kept in thе store for sale, and the juster, more reasonable inference, when there is no evidencе of a fraudulent taking, is that they have been sold, or disposed of otherwise lawfully. Admitting every fact which thе evidence tends to prove, it is wholly insufficient to raise a reasonable presumption that either of the offenses of which the appellant was accused had been committed, and thе court should have so instructed the jury. This was the effect of the instruction requested, and it ought to have bеen given.

It is a great wrong for the court to invade the province of the jury. In avoiding that wrong, the greаter one of imper-illing the liberty and reputation of the citizen may be committed, by the submission to a jury оf criminal accusations in the absence of evidence tending to support them.

The judgment must be reversed, and the cause remanded ; but the appellant will remain in custody, until discharged by due course of law.