The plaintiff in error was convicted of the crime of burglary, for breaking and entering a dwelling-house in the night-time, and committing the crime of larceny therein; and, upon such conviction, he was sentenced to imprisonment in the state prison for three years. The information charges that the accused broke and entered the dwelling-house of one John Bechtel, situate in the county of Milwaukee, in the night-time, with intent to steal the goods and chattels of John Bechtel, then and there being. The evidence, shows that the house mentioned in the information was the dwelling-house of John Bechtel, and was used by him as a boardinghouse and saloon; that the house was broken and entered by some one in the night-time, .as alleged in the information, and an overcoat and two boxes of cigars belonging to said John Bechtel, an overcoat, pair of gloves and pair of boots belonging to a boarder, and a cap belonging to the son of John Bechtel, were stolen and carried away. The two overcoats and other things stolen were in the bar-room of the house. The boarder whose property was stolen did not sleep in the bar
It is not strongly urged by the learned counsel for the accused, that there is such a failure of evidence on the part of. the state as would justify this court in setting aside the verdict of the jury upon the main question of the guilt of the accused; but he insists that the intent to steal the goods and chattels of John Bechtel is not proven, and for that reason the accused should have been acquitted or the judgment ar-i’ested. The information having charged a particular intent to steal the goods of John Bechtel, it is insisted, by the learned counsel for the accused, that no conviction can be had upon that information without proving such particular intent; that proof which shows a general intent to steal, or an intent to steal the goods of some other person, would not be sufficient to justify a conviction. This view of the case is undoubtedly the true one, and was taken by the learned judge who tried the ease in the court below, as appears from his instructions to the jury on the trial.
The learned counsel for the accused alleges as error that the judge, against his objection, permitted the witnesses to state that the accused was found in possession of the cap of the son and the overcoat of the boarder. He urges that, although this evidence might be competent as tending to prove the defendant guilty of breaking and entering the house as alleged in the information, it was not admissible as evidence tending to show that the accused intended to steal the goods and chattels of John Bechtel. We are inclined to hold that this evidence was competent, not only for the purpose of showing
There was no error in admitting evidence of the possession of some of the stolen property by the accused, and his statements concerning them. Such evidence tends to prove the burglarious entry of the premises described in the information, by the accused, and also to prove that the accused stole and carried away the overcoat and cigars of John Bechtel; and, tending to prove that the accused stole the goods of Bechtel, it tended to prove the intent as charged in the information.
The learned judge before whom this case was tried, in-
The learned judge, after instructing the jury upon the question as to whether the coat of the boarder might be considered in the possession of the said John Bechtel, so as to make it his property, for the purpose of maintaining the charge that the intent was to steal the property of John Bechtel, again says: “The cap which is produced here you may also take into consideration in this matter, for the purpose of determining who entered that house and with what intent it was entered.” These instructions were clearly intended to refer to the proof of the possession of these articles by the accused shortly after the crime was committed, and the circumstances attending such possession, and must have been so understood by the jury, and as so understood were proper to be given to the jury.
The counsel for the accused also assigns as error the refusal of the court to give the following instruction: “ The burglary cannot be inferred from finding the stolen property in the possession of the accused.” If the instruction asked had been “ that the burglary could not be inferred by proof of the mere possession of the stolen property, or a part of it, by the accused shortly after the commission of the crime, unaccompanied by any proof of other suspicious circumstances,” we are inclined to hold that it should have been given. Jones v. People, 6 Parker, 126; Whart. Crim. Ev. (8 th ed.), § 763; Ingalls v. State, 48 Wis., 647, 656. In this last case this court has stated the effect which should be given to the proof of possession of stolen goods by the accused. The instruction
But tbe learned judge further instructed tbe jury that proof, of tbe larceny of tbe coat of tbe boarder- of John Bechtel, taken from the saloon or bar-room of Bechtel’s bouse, was proof of a taking from tbe possession of tbe said Bechtel, and was as effective, under tbe statute below cited, to prove an intent to steal tbe goods of said Bechtel, as though tbe coat stolen in fact belonged to him. This instruction was excepted to by the defendant, and is relied upon as error in this court.
The learned judge justified this instruction under the provisions of section 4621, E. S. The section reads, as follows: “ In the prosecution of any offense committed upon, or in relation to, or in any way affecting, any real estate, or any offense committed by stealing, embezzling, destroying, injuring, or fraudulently receiving or concealing, any money, goods or other personal estate, it shall be sufficient, and shall not be deemed a variance, if it be proved on the trial that, at the time when the offense was committed, either the actual or constructive possession, or the general or special property, in the whole or any part of such real or personal estate, was in the person or community alleged in the indictment, information or other accusation to be the owner thereof.” "We have no doubt the crime of burglary is a crime affecting real estate, within the meaning of said section, and that an allegation of the ownership of the house burglarized would be sufficiently proved by showing that it was in the actual or constructive possession of the person alleged to be the owner in the information. We are also of the opinion that this section covers the crimes of larceny and embezzlement of personal property, when charged in the information as distinct offenses in no way connected
That this section is applicable to crimes relating to personal property as well as those relating to real estate, has been frequently held by the courts of Massachusetts, from which state we copied the section above referred to.' See R. S. Mass., 1836, ch. 13, § 11; R. S. Mass., 1860, ch. 172, § 12; Com. v. McLaughlin, 103 Mass., 435; Same v. Harney, 10 Met., 422; Same v. Arrance, 5 Allen, 517; Same v. Norton, 11 Allen, 110; Same v. Lawless, 103 Mass., 425; Same v. Sullivan, 104 Mass., 552; Same v. Finn, 108 Mass., 466; Same v. Maguire, id., 469; Same v. Dailey, 110 Mass., 503; Same v. Goldstein, 114 Mass., 272; Same v. McGorty, id., 299; Same v. Brigham, 123 Mass., 249. In the case of Com. v. McGorty it was held, that, under this statute, proof that-property was in possession of a widow, although forming a part of the unadministered estate of her deceased husband, would support an allegation that it was her property; and in Com. v. Finn it was held, that an indictment for receiving stolen
¥e think that the coat and other property of the boarder of John Bechtel, left in his saloon or bar-room while the boarder slept in some other part of the house, was, during the night, and while it remained in such bar-room and not under the present and personal control of such boarder, in the actual possession of the owner of the house and under his protection; and that he might have maintained trespass against any person other than the owner for. wrongfully taking and carrying away the same. His possession being an actual one under the proofs, an allegation in the information that he was the owner is not such a variance as should entitle the accused to an acquittal. In Commonwealth v. Smith, 111 Mass., 429, it was held that an indictment charging larceny in a dwelling-house was sustained by proof that a lodger in the dwelling-house went to bed, having placed his clothes on a chair, and the defendant took from the pocket of the clothes the key of the lodger’s trunk, opened the trunk, which was in the same room, and stole the money therefrom; that the trunk, clothes and money of the lodger, while asleep, were under the protection of the house, and not under his own protection.
"We do not understand that it is necessary that the person in the actual possession of property should have any general or special property therein in order to constitute him the owner thereof for the purpose of sustaining an information for a larceny thereof under the statute, The statute says it is sufficient if the person alleged to be the owner thereof have the actual or constructive possession, or the general or special property in the whole or any part thereof.
The owner of the saloon and boarding-house having the actual possession of the property of his lodger, left by him in the bar-room or saloon while he was sleeping in another part of the house, the ownership of the property was sufficiently
By the Court.— The judgment of the municipal court of Milwaukee county is.affirmed.