| Ala. | Dec 15, 1884
There was certainly testimony in this case that the corn had value. Use as food for horses and mules, constitutes value, as all men must be presumed to know. But there was evidence that corn, in that neighborhood, was wmrth fifty cents a bushel, and that there were in the crib from one hundred and fifty to two hundred bushels of corn. If this testimony was believed, there was ample evidence of value. The Circuit Court did not err in the affirmative charge given, nor in refusing to give charges three and four asked by the defendant. There being proof that corn had value, there is no rule of law that that fact, any more than any other, shall be “positively proved by the evidence.” Circumstantial evidence is sufficient,
2. The testimony of the witness Davis tended to show, that the defendant removed the filling or obstruction which had been placed in the chinks of the crib, and thereby effected an opening, through which he thrust his arm, and by that means abstracted the corn he is charged with intending to steal. This, if true, would be a sufficient breaking, to constitute that element of the crime of burglary. The defendant testified, that he did not remove the obstruction, but that it had been previously removed, and the opening was there when he went there. He also testified, that Davis himself took the corn out of the crib. Now, if the defendant removed nothing, and neither effected nor enlarged the opening through which the corn was taken out, then he was not guilty of burglary, even though he thrust his arm in, and took out the corn. His act, in such event, might be larceny. The fifth charge, asked by defendant, raises this question. It claimed an acquittal, on the hypothesis of defendant’s statement of the facts in the case. On that hypothesis, he would not be guilty of burglary; for, to constitute that crime, there must be both a brealdng and entering, as well as the intent to steal, or to commit a felony. — 3 Green. Ev. §§88, 76, et seq.; 2 Russ. on Crimes, 9th Ed., 2 ; Pines v. State, 50 Ala. 153" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/pines-v-state-6508640?utm_source=webapp" opinion_id="6508640">50 Ala. 153; Brown v. State, 55 Ala. 123" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/brown-v-state-6509360?utm_source=webapp" opinion_id="6509360">55 Ala. 123; Walker v. State, 63 Ala. 49" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/walker-v-state-6510371?utm_source=webapp" opinion_id="6510371">63 Ala. 49.
3. There is an error in the judgment for costs. The sentence to hard labor for the non-payment of costs, can not now exceed eight months in cases of misdemeanor, and fifteen months in cases of felony. The sentence in this case exceeds fifteen months. — Sess. Acts, 1880-81, 37. This error being clerical, if the only one in the record, would have been here corrected.
Reversed and remanded.