State v. MaxwellState v. Maxwell
- Reporters:
- Before:
- Day
In this there was no error. The witness upon her direct *210examination liad testified only to facts, and had not expressed any opinion as to the intention of the defendant in the house. Whatever her opinion may have been, it was immaterial and inadmissible.
The defendant could neither be convicted nor acquitted upon the opinion of this witness as to his intention. It is urged by appellant that the question was admissible for the purpose of laying the foundation for impeachment. But a witness cannot be impeached upon an immaterial matter.
II. The defendant asked the court to instruct as folloivs: “ 3. If you fail to find from the evidence that the defendant did actually steal in the house, then, in that case, the intent to steal in the house at that time must be distinctly proved before you can find the defendant guilty.”
“12. It is not necessary’that the prosecution should show that the defendant actually stole anything, but it is sufficient if it appear to your satisfaction, from his conduct, words and acts, in connection with what was at the time done by Gale and his wife, and from all the other facts and circumstances disclosed by the evidence, that he broke and entered the house, intending to do so.”
The court also instructed: “ 3. To establish his guilt, the evidence should be such as to satisfy your minds beyond a reasonable doubt, not a barely possible doubt, nor a captious or imaginary or forced doubt, nor a doubt sought after outside of the evidence, but a reasonable doubt; that is, such a doubt as. naturally and spontaneously arises in, or suggests itself to, *211your minds as reasonable men, after a full, careful and considerate examination of all the evidence in the case.”
Although section 82 of 3 Greenleaf on Evidence tends to support the instruction asked by defendant, yet we feel satisfied that the better reason favors the rule as announced by the court.
If the intent must have distinct and substantive proof, it would almost always be impossible to convict where the defendant did not succeed in going beyond the mere breaking and entering, for no one could tell what his ultimate intention was — whether to commit a public offense, or merely to obtain shelter for the night.
The proper doctrine, we think, is that announced in Wharton’s Criminal Law, See. 1600, as follows: “ The intent may be inferred from the facts. Thus, where a man was found in the night time in the chimney of a shop, just above the mantel piece, and before he had entered the shop, the jury found him guilty of burglary with the intent to steal, upon this evidence only, and the judges confirmed the conviction, •x- -x- * * * The very fact of a man’s breaking and entering a dwelling house in the night time is strong presumptive evidence that he did so with intent to steal, and the jury will be warranted in finding him guilty, unless the contrary be proved.”
The defendant also complains of - the refusal of the court to give the following instruction: “2. Unless you find from the testimony that the defendant broke and entered the house with intent to steal, he cannot be found guilty as charged in the indictment, for the criminal intent charged is indispensable to constitute the crime. And where a criminal intent is to be established by circumstantial evidence, the proof ought to be not only consistent with the defendant’s guilt, but it must be wholly inconsistent with any other rational conclusion, than that of the defendant’s guilt.”
The first branch of this instruction is fully covered by the seventh instruction given by the court, in which the court directed the jury to find the defendant not guilty if they failed *212.to find that defendant entered the house with intent to commit larceny.
Upon the second branch of the instruction appellant cites and relies upon 1 Greenleaf on Evidence, Sec. 13; State v. Ostrander, 13 Iowa, 459; The Commonwealth v. Cobb, 14 Gray, 57, in which it is announced that when a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.
The court refused this instruction and gave the following: “4. If you find from the evidence that defendant entered the dwelling house of Gale, and that at the time he went in he was drunk, and went in unconsciously, through drunkenness, not knowing where he was or what he was doing, and without any intent to steal or commit any other crime, then he would not be criminally responsible for what he is shown to have done.” “5. Drunkenness is no excuse for crime, and in this case the evidence before-you tending to show that the defendant at or near the time of the alleged crime was drunk, was not admitted for the purpose of excusing the offense, but for the purpose of showing that he was so uncon*213scions at the time that he could have no criminal, intent in what he did, and if you fail to find that he was so unconscious, then the evidence of his drunkenness should have no weight, but should be entirely disregarded by you in arriving at your verdict.” “6. As men do not, while in possession of their usual senses, act without some motive, purpose or intent, if the defendant in this case was not at the time he entered the house of Gale, if he did enter it, so drunk that he did not know what he was doing, that is, if he was not unconscious of what he was doing, the law presumes that that entrance was for some purpose and with some intent, and it is for you to determine from all the evidence in this case, whether he was at the time unconscious, and if not unconscious, then whether he entered the house with intent to commit larceny.” The instruction asked and refused is almost in the exact language of that asked in The State v. Bell, 29 Iowa, 316, and which it was held should have been given. But the fourth instruction given by the court embraces the same principle, and is equally favorable to defendant. Instructions five and six present proper qualifications of the defense of drunkenness, and they were properly given. See State v. Bell, supra; “Wharton’s Criminal Law, sections 41 — 44.
Appellant insists that when this communication was handed to the court, the jury should have been called in and instructed that if they had a reasonable doubt as to the intention to commit larceny, it was their duty to bring in a verdict of acquittal. But the court had fully instructed the jury as to all the essential elements of the offense; had told them that if they failed to find that defendant entered the house with intent to commit larceny, they must acquit him, and that before they could convict they must be satisfied of his guilt beyond a reasonable doubt. The court had fully and correctly given the law. The jury had difficult}’ with a question of fact, and with that it was not the province of the court, at that time, to interfere.
; YII. It is claimed, lastly, that the verdict is not supported by the testimony. That the defendant was found in the house in question, at the time charged, is clearly proved. Upon the *215question of his intoxication and the degree of intoxication, the evidence is conflicting. We would have been better pleased with a verdict of acquittal upon this ground, but the evidence is not of such a character as ‘to justify a disturbance of the verdict by us, upon the ground that the evidence does not support it.
Affirmed.