State v. . McBryde

Davis, J.,

(after stating the facts). It is insisted for the defendant,- that there was no evidence that should have gone to the jury, and that the Court should have directed an acquittal. Whether there is any evidence, is a question for the Court; what weight is to be given to it when there is any, is for the jury. “ When there is no evidence, or if the evidence is so slight as not reasonably to warrant the infer■ence of the defendant’s guilt, or furnish more than material for mere suspicion, it is error to leave the issue to be passed upon by the jury;” State v. Patterson, 78 N. C., 470; State v. Rice, 83 N. C., 663, and the cases there cited.'

“ When the act of a person may reasonably be attributed to two or more motives, the one criminal and the other not, the humanity of our law will ascribe it to that which is not criminal. It is neither charity, nor common sense, nor law, to infer the worst intent which the facts will admit of;” .State v. Mousey, 86 N. C., 660, and the cases there cited.

These cases from .our own Reports, and others of a similar purport, cited by counsel for the defendant, are relied on as authority for the position that in this case, there was no evidence that should have been submitted to the jury upon the question of intent to commit the crime charged. It is often difficult, in the application of the principle that requires the Court to withhold from the jury the evidence, when so slight as not reasonably to warrant a conviction, to determine the point where the power and duty of the Court end, and the right and duty of the jury begin. The same facts and circumstances impress different minds with different degrees of force, and what may, in the opinion of one, be entirely sufficient to warrant an inference of guilt, would, in the ■opinion of another,- be slight and unsatisfactory. That difficulty is presented in this case, but after full consideration, we think there was evidence to go to the jury, and that there was no error in the charge of the Court. The intelligent mind will take cognizance of the fact, that people do' not usually enter the dwellings of others in the night time, when the inmates are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the night time, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circuinstances, may warrant a reasonable inference of guilty intent. Here there was no lárceny or other felony actually corhmitted, and the guilt, if any, consisted in the intent to commit a felony, which was not consummated. There was no “breaking,” but by statute {The Code, §996), it is made a misdemeanor, ‘‘if any person shall break or enter a dwelling-house of another, otherwise than by a burglarious breaking, * * * * * * with intent to commit a felony.or other infamous crime therein.”

The intent, which is the substantive crime charged, is not-the object of sense — it can not be seen or felt, and if felonious, is not usually announced, so where no felony has been actually consummated, (in which case the intent may bo presumed from the act,) it would be difficult to prove any crime consisting of the intent alone, unless the jury be allowed to infer the intent from circumstances. What are the circumstances in this case ? The prisoner entered the dwelling-house of Hornaday about two o’clock in the night time; two ladies were asleep in a room of the house in the warm month of July — the window was open, and when one of them awoke, she saw the prisoner sitting on the foot of her bed; she screamed, and he fled instantly through the open window — some clothing had been displaced. He offered no evidence to explain his intent.

The humanity of our law will not permit juries to draw any inference to the prejudice of a prisoner from the fact that he does not himself go upon the stand as a witness in his own behalf, but there was no explanatory fact or circumstance from any source, to show any intent not criminal, and the facts and circumstances proven are sufficient to outweigh the legal presumption of innocence, and put him upon his defence.

The jury was relieved from any consideration of the intent charged in the second count of the indictment by the •charge of his Plonor. Of this the prisoner certainly could not complain, unless it be error, in considering the intent to «teal, to exclude an hypothesis of a more heinous intent "than that charged.

“ The intention of the parties,” says Roscoe, “ will .be .gathered from all the circumstances. * * * Persons do not in general go to houses to commit trespasses in the middle of the.night.” Criminal Evidence, 347. “The vfery fact of a man’s breaking and entering a dwelling-hóuse 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.” Whar-ion’s Criminal Law, 1600.

Blackstone, in speaking of the intent as an ingredient in the crime of burglary, says, “it is the same whether such intent be actually carried into execution, or only demon•strated by some attempt or overt act, of which the jury is to .judge.” 4 Blackstone, chapter 16.

In Rex v. Brice (English Crown Cases), Russell & Ryan, 449, it was left to the jury to say, whether from the breaking •and entering they were satisfied that the prisoner’s intention was to steal, and upon conviction ten of the twelve judges held that it was proper. The same was held by Park, J., in Lewin’s Crown Cases, vol. 2, page 37.

Similar authority is found in Archbald’s Crim. Prac. and Pleading, 340.

We have gone more fully into the consideration of the question presented in this case, because in some of our own Reports, notably the State v. Boon, 13 Ired., 244, and State v. Haynes, 71 N. C., 79, evidence stronger perhaps than that presented here, seems to have been regarded as slight, though permitted to go to the jury. It will be observed, that the evidence in the cases cited related to the crime of burglary, a capital felony, and if deemed of sufficient weight to warrant the jury in convicting of the higher crime certainly it would be admissible in a case of misdemeanor, as this is.

There is no error. Let this be certified.