64 P. 423 | Ariz. | 1901
The appellant was convicted of burglary of the first degree, alleged to have been committed on or about January 10, 1900, by entering a store in the night-time with intent to commit larceny. He appeals from the judgment, and assigns two grounds of error, upon which he. relies for reversal.
1. It is first claimed that the evidence is insufficient to sustain the verdict and judgment. Under our statute, “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, . . . with intent to commit grand or petit larceny, or any felony, is guilty of burglary.” Pen. Code, par. 713. “Every burglary committed in the nighttime is burglary of the first degree, and every burglary committed in the day-time, is burglary of the second degree. ’ ’ Id., par. 715. “The phrase ‘night-time,’ as used in this chapter, means the period between sunset and sunrise.” Id., par. 717. Prom the statement of facts it appears that on the night of January 10, 1900, or in the early morning following, the store of one Victor B. Bloom, in the town of Globe, was entered, the safe broken open, and some money and valuables taken therefrom, including about four hundred dollars in negotiable checks drawn by the Old Dominion Copper Mining and Smelting Company on the Bank of California, of San Pranciseo, California. About twelve days later the appellant, in person, presented these checks for payment at the bank upon which they were drawn, and was shortly thereafter arrested, brought back to Arizona, and prosecuted. Counsel for the appellant insists that there is no evidence in the. record to show that the burglary was committed between the hqurs of sunset and sunrise. In this contention we think he is not sustained. Victor B. Bloom, the owner of the store -which was burglariously entered, and a witness for the prosecution, testified as follows: “I did not notice anything out of the way in the store on the night of the 10th of January, 1900, when I closed up. I was called between 7 and 7:30 o ’clock on the morning of the 11th
2. The appellant complains of the following instruction which was contained in the charge of the court: ‘ ‘ The. jury are instructed that, where a burglary is connected with a larceny, mere possession of stolen goods, without any other evidence of guilt, is not to be regarded as prima, facie or presumptive evidence of the burglary. But where goods have been feloniously taken by means of a'burglary, and they are immediately or soon thereafter found in the actual or exclusive possession of a person who gives a false account, or who refuses to give any account, of the manner in which the goods came into his possession, proof of such possession and guilty conduct is evidence tending to prove not only that he stole the goods, but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary is superadded to that of larceny.” It is found frequently repeated in the boobs of the law that the recent unexplained possession of stolen goods
Street, C. J., and Sloan, J., concur.