56 Kan. 470 | Kan. | 1896
The opinion of the court was delivered by
: The defendants were charged with burr glariously breaking and entering a hen-house, belonging to Jennie Johnson, and stealing therefrom 23 hens and 2 roosters. They pleaded guilty to petty larceny, but not guilty as to burglary. The jury found them guilty of both burglary in the second degree and petty larceny, and they were thereupon sentenced to confinement in the penitentiary for 30 days for the larceny, and five years for the burglary.
The principal complaint is of the admission of the testimony of witnesses narrating a conversation with the defendants, in which they admitted not only the stealing of Johnson’s chickens, but of chickens belonging to other persons, and a hatchet, at about the same time. It is claimed that the prosecution sought to convict the defendants of the crime of burglary in this case by proving the commission of other larcenies, and many authorities are cited to the effect that proof of offenses distinct from the one with which the defendants are*charged is inadmissible. This is, doubtless, the general rule, though it is subject to some exceptions not necessary now to state. But these conversations were admissible because they were the declarations of the defendants as to what
It is contended that the proof of breaking and entering the hen-house is insufficient. The witness Johnson testified that the chickens were in the hen-house when he went to bed; that he had shut and . fastened the door with a hook and staple ; that in the morning, when he got up, he found the door shut, but not in the way he shut it; that some of the chickens were gone, and that he found 22 of his hens and one of his roosters in the possession of the defendants. He also testified that he put a nail in between the hook on the door and the board, so that if any .one opened it the nail would fall down, and that in the morning the nail was lying on the ground, and that the hook wasn’t down in the staple.
We think the jury had a perfect right to disbelieve the story of the defendants that they found the chickens in the trees, and to infer, from the testimony of Johnson with reference to the fastening of the door and the chickens being in the hen-house at night, and the conceded fact that the defendants got them, that
The final objection urged is that the defendants could not be lawfully sentenced to confinement in the penitentiary for petty larceny. But paragraph 2201 of the General Statutes of 1889 provides that, if a person in committing burglary also commit larceny, he shall be punished by confinement and hard labor not exceeding five years, in addition to the punishment for the burglary.
The judgment is affirmed.