Moseley v. State

Mar 15, 1908
Versions:45 So. 833
92 Miss. 250
Calhoon, J.,

delivered the opinion of the court.

The indictment is for burglary and contains two counts. The first, by apt words, charges’burglary with intent to commit larceny. The second count charges burglary with intent to commit “a crime.” The verdict was guilty as charged in the bill of indictment. The indictment was not demurred to; nor was any defect in it noticed until objection made in the motion for a new trial, in which it is stated that the second count charged no offense and that the facts did not warrant conviction on the first count.

Where one of several counts is defective, a verdict of conviction will be referred by the courts to the valid count, and so it is only necessary to determine whether the facts warranted a conviction of burglary with intent to commit larceny. The testimony for the state, which the jury manifestly believed, showed that the room broken into was occupied that night by eleven people, consisting of Mrs. Nicol, her husband, and nine children. Thé husband and some of the children occupied the bed, and the wife, with the others, were sleeping on the floor. The burglarious entrance was affected, and the appellant crept across the room, and went to where Mrs. Nicol lay, and pulled *256her foot. She screamed, and caught him by the collar, whereupon-he took fright and ran out, jumping through the burglarized window. It was not shown that anything was stolen. It is-unthinkable that the purpose of the burglar was to ravish the woman, and so the jury were left to conclude from all the facts what his purpose necessarily must have been.

We have examined some of the authorities referred to in the-brief of the assistant attorney-general for the state, and arrived at the conclusion that the verdict was warranted. State v. Fox, 80 Iowa, 312, 45 N. W., 874, 20 Am. St. Rep., 425; Commonwealth v. Shedd, 140 Mass., 451, 5 N. E., 254; Steadman v. State, 81 Ga., 736, 8 S. E., 420; Franco v. State, 42 Tex., 276; Woodward v. State, 54 Ga., 106; 6 Cyc., 245, and notes; and notably State v. Worihen, 111 Iowa, 267, 82 N. W., 910. In this last case, which is almost identically like the one before us, the court said: “The defendant insists that, though the motive to enter Fort’s house cannot be justified the intent to steal cannot be inferred from these facts. Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn, in the absence of explanation, from breaking and entering at night, accompanied by flight when discovered, even though nothing has been taken. With the conditions as shown by the evidence, we think no presumption can be indulged with reference to his design on Grace-Fort. Whether he entered to assault her or to steal was a matter to be inferred from all the circumstances.”

- The other authorities referred to are in line with this. IJnder the circumstances shown in this case, all men are bound to-presume that the burglar had some motive, and that his motive was to commit some crime. In the vast majority of instances, nearly all, the intent is to steal; and we decline to re*257verse because the jury determined that his motive was to commit theft, rather than the very much more unusual and graver offense of rape, which, as we have just stated, is apparently incredible in a room occupied by eleven people.

Affirmed.