Summary
In Jones v. State, 172 Miss. 597, 601-02, 161 So. 143, 144 (1935), this Court stated: "... an attempt implies both purpose and an actual effort to carry that purpose into execution."
Summary of this case from Brown v. StateOpinion
No. 31643.
April 29, 1935.
1. BURGLARY.
Design to effect entrance into dwelling unlawfully may be shown by circumstances in trial for attempt to commit burglary (Code 1930, section 793).
2. BURGLARY.
An act may be sufficient in and of itself to warrant jury in finding that one charged with attempt to commit burglary intended to commit such crime (Code 1930, section 793).
3. BURGLARY.
"Intent" to commit burglary implies purpose only, while "attempt" to do so implies both purpose and actual effort to carry such purpose into effect (Code 1930, section 793).
4. BURGLARY.
Conviction of attempt to commit burglary will be sustained, if method employed was calculated to carry out such unlawful purpose, though not most sensible or usual method (Code 1930, section 793).
5. BURGLARY.
Mere fact that one charged with attempt to commit burglary rattled window of dwelling "like he was trying to get in" raised no presumption that he intended to commit such crime (Code 1930, section 793).
6. BURGLARY.
Intent to commit burglary was essential, indispensable element of crime charged by indictment for attempting to break and enter dwelling house by breaking or forcing window thereof, with intent to take, steal, and carry away personal property therein (Code 1930, section 793).
7. BURGLARY.
Evidence, in trial for attempt to commit burglary, that defendant rattled window of dwelling house "like he was trying to get in" and falsely stated that cook thereat had told him to bring some eggs there, held insufficient to sustain conviction (Code 1930, section 793).
APPEAL from the circuit court of Warren county.
HON.E.L. BRIEN, Judge.
Harry, alias Percy, Jones was convicted of an attempt to commit burglary, and he appeals. Reversed, and defendant discharged.
Harry K. Murray, of Vicksburg, for appellant.
The prosecution herein was commenced in the circuit court of Warren county under section 793, Code of 1930. The statute is declaratory of the common law. What constitutes an overt act under the statute cannot be stated in the abstract. The proof of intent to commit a burglary in the instant case must rest upon the bare fact that the negro defendant went upon the front porch of a residence in Cherry street, a principal thoroughfare in Vicksburg, Mississippi, about nine-thirty o'clock at night, where there was light in the front room and a negro attendent on the premises, and shook the window.
The elements of criminal intent coupled with an overt act must be proved.
3 Am. Eng. Enc. of Law, page 254; Cunningham v. State, 49 Miss. 685.
The defendant's request for a peremptory instruction and directed verdict of acquittal should have been granted.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
There must be an attempt to commit a crime, and an act towards its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately, when an act is done, the law judges, not only of the act done, but of the intent with which it was done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.
Stokes v. State, 92 Miss. 415, 46 So. 627; Cunningham v. State, 49 Miss. 685; State v. Wade, 102 Miss. 711, 59 So. 880; Miller v. State, 130 Miss. 730, 95 So. 83; Dill v. State, 149 Miss. 167, 115 So. 203.
In the case at bar the defendant's presence at this home at that time of night and the things he did when he got to the house are at least of such nature as that the jury would be warranted in saying that he was there attempting to make a burglarious entry into this home. The judgment appealed from should be affirmed.
Appellant was convicted in the lower court on an indictment charging him with an attempt to commit burglary, and was sentenced to serve a term of five years in the state penitentiary, from which this appeal is prosecuted. The indictment, in part, charges that the appellant did "wilfully, feloniously and burglariously attempt, wilfully, feloniously and burglariously to break and enter the dwelling house of one Mrs. Hester C. Flowers by breaking or forcing a window of said dwelling with the intent wilfully, feloniously and burglariously to take, steal and carry away the personal property therein contained."
The indictment is predicated upon section 793, Code 1930, which is, in part, as follows: "Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall," etc.
In Miller v. State, 130 Miss. 730, 95 So. 83, 84, an attempt under this statute was defined as follows: "Under this section there are two necessary elements to constitute the offense, first, the intent to commit an offense; and, second, an overt act toward its commission" — citing to support this the cases of Cunningham v. State, 49 Miss. 685, and State v. Wade, 102 Miss. 711, 59 So. 880, in which latter case the court held that the language of the statute was but an apt statement of the common law. In the case of Stokes v. State, 92 Miss. 415, 46 So. 627, 629, 21 L.R.A. (N.S.) 898, we find this statement of the law: "There must be an attempt to commit a crime, and an act toward its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately when an act is done, the law judges, not only of the act done, but of the intent with which it was done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable." The court there further said that: "To a very great extent each and every case must stand on its own facts."
Briefly stated, the facts of the case at bar are these: The home of Mrs. Hester C. Flowers is located on Cherry street in the city of Vicksburg, Warren county, Mississippi. A night watchman had been employed to guard the premises. At about nine-thirty p.m. this night watchman discovered the appellant walking upon the front porch of this house and saw him pass the front door and go to a window, and shake and rattle "the window like he was trying to get in." At this point the night watchman accosted him, holding a gun on him, and about that time Mr. Flowers drove up, called the police, and turned the appellant over to the police. A dim light was burning in the hallway, but the front porch was dark at the time.
The appellant stated that the cook had told him to bring some eggs there. He had no eggs with him at the time. The cook at the Flowers home testified that the appellant had come to the house a few evenings before and told her, when he found Mrs. Flowers was not at home, that Mrs. Flowers had told him to bring some eggs, and that thereupon the cook said Mrs. Flowers had not told appellant anything of the kind because her own hens were laying, and that Mrs. Flowers was out of town. The cook asked appellant when Mrs. Flowers had so told him, and he replied it was "about a week ago," and the cook told him that Mrs. Flowers had been out of town for about three weeks at that time.
At the time of his arrest, the appellant declared: "I was not trying to break in. I did not get in and steal anything. I want you to let me go."
From these facts, may it be implied that the appellant intended to commit the crime laid in the indictment, to-wit, burglary? The act itself consisted of rattling the window. The appellant is not shown to have had any burglar's tools or any design to unlawfully effect an entrance into the dwelling. Such a design may be shown by circumstances. An act, in and of itself, may be sufficient to warrant the jury in finding that the intent existed. But here the act of rattling the window is just as consistent with the implied intent of attracting the attention of parties on the inside of the building as it is to infer that the appellant intended to forcibly make his entrance. According to the evidence, he did not undertake to raise the window or to break the glass, and he is not shown to have had any tools with which to forcibly enter. The fact is that it may be inferred that he desired to hold a conversation with the cook, or had some other motive, lawful or unlawful. The intent implies purpose only, while an attempt implies both purpose and an actual effort to carry that purpose into execution.
In the case at bar, if the facts were sufficient to establish an intent, then a slight act might be sufficient to sustain the conviction of appellant. The method employed need not be the most sensible or usual, but, if calculated to carry out the unlawful purpose, then a conviction would be sustained.
The mere fact that the appellant "rattled the window like he was trying to get in" does not raise the presumption that he had the intent to commit burglary. Under this indictment the intent to commit that crime was an essential, indispensable element thereof.
It is true that in this case the appellant told a falsehood, but there still remains an utter lack of intent to be adduced, on the part of this appellant, to commit the crime of burglary. It is probable that the arrest was made a trifle too soon.
The peremptory instruction requested by the appellant should have been granted by the court, because the evidence is insufficient to sustain a conviction, and the appellant must be discharged.
Reversed, and appellant discharged.