No. 10,092 | Cal. | Jul 1, 1874
The defendant, having been tried and convicted of the offense of house-breaking, appeals from the judgment and from the order overruling his motion for a new trial.
1. The Court refused the following instruction asked by the defendant: “ The possession of the fruits of crime is a circumstance to be considered in determining the guilt of the prisoner; but this circumstance is not, of itself, sufficient to authorize a conviction; and the possession of property alleged to have come from the house named in the indictment is not sufficient to convict the defendant of housebreaking.”
The instruction should have been given. If the defendant had been put upon trial for a larceny of the goods taken from the house, there can be no question that the mere circumstance that the stolen articles were found in his possession soon after the taking would have been insufficient to convict. The same circumstance, unsupported by other evidence, would be equally insufficient to prove the intent to steal, which, in this case, is an essential element of the offense charged, and without proof of which the defendant could not be convicted; much more would this evidence fall short of sufficient proof of the entire offense, which includes the entry itself, as well as the criminal intent accompanying the entry.
Judgment and order reversed and cause remanded for a, new trial.