(S. v. Patterson, 78 N.C. 470; S. v. Rice, 83 N.C. 663; S. v. Massey,86 N.C. 660; cited and approved; S. v. Boon, 13 Ired., 244; S. v. Haynes,71 N.C. 79; commented on.)
(S. v. McDaniel, 1 Winst., 249; cited in the dissenting opinion.) This was an indictment for entering the dwelling-house of one J. A. Hornaday in the night time, otherwise than by a burglarious breaking, to wit: through an open window, with a felonious intent.
There were two counts in the indictment, the first charging the entry to have been with intent to steal the goods of J. A. Hornaday, and the second with intent to commit a rape upon Mary E. McQuagin.
The State introduced the said Mary as a witness, who testified in substance, that on 22 July, 1886, she was at the house of J. A. Hornaday, in the county of Robeson; that there was an open window in the room in which she was sleeping, and that she woke up about two (394) o'clock in the night, and saw the prisoner sitting on the foot of the bed. That she was not frightened, and that the prisoner did not put his hand upon her; that she screamed, and the prisoner immediately ran and jumped out of the open window. It was a moonlight night, and there were several windows in the room. That when she went to bed, there was a dress on a trunk at the open window, and when she awoke the dress was on the head of her bed, and that she did not know who put it there; that there was another lady sleeping in the room, and that their beds were about ten feet apart."
There was no evidence as to whom the dress belonged, or who removed it, or whether the witness or other lady retired first.
J. A. Hornaday was then put upon the stand and testified as follows:
"That he was sleeping in the house on the night of 22 July, 1886, in a different room from the ladies, and he heard the screaming, and jumped up and got his gun and went into the room where they were, and when he got there, the person who had entered that the room had gone, and that the witness Mary E. McQuagin, informed him that Daniel *Page 309 McBryde was the person who had been in the room; that the moon rose that night about eleven o'clock."
The defendant offered no evidence.
His Honor, in response to the first prayer for instructions for the defendant, charged the jury: "That the evidence in the case is not reasonably sufficient to maintain the charge against the defendant of an intent feloniously to ravish and to have carnal knowledge of Mary McQuagin, forcibly and against her will," and in response to the third prayer, he charged the jury: "That even if they should believe from the evidence, that the prisoner entered the house for an unlawful purpose, they could not convict him, unless that purpose was with the intent to feloniously steal, take and carry away the goods and chattels of J. A. Hornaday; and if the jury, from the evidence, are left in doubt as to the (395) intent with which he entered the dwelling-house, they could not convict, as the prisoner is entitled to the benefit of all doubts."
The second prayer for instructions was as follows: "That the evidence in this case is not reasonably sufficient to maintain the charge against the defendant, that he did unlawfully and feloniously, otherwise than by a burglarious breaking, to wit: did then and there feloniously enter the dwelling-house of J. A. Hornaday, in the night time through an open window, with the felonious intent then and there of the goods and chattels, money and other property of the said J. A. Hornaday in the said dwelling-house then and there being, feloniously to steal, take and carry away." His Honor refused to give this charge, and in addition to the charge given as above, charged the jury, "that there was no evidence as to who removed the dress, or whose property it was, and if they were fully satisfied that the prisoner entered the house of the said J. A. Hornaday with the felonious intent to steal, take and carry away any of the goods, chattels, money or other property of J. A. Hornaday in the said dwelling, that they would find him guilty, and that if they were not so satisfied, they would find him not guilty."
There was a verdict of guilty. Judgment and appeal to this Court. 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, *Page 310 (396) or if the evidence is so slight as not reasonably to warrant the inference 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"; S. v. Patterson, 78 N.C. 470; S. 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";S. v. Massey, 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 (397) 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 circumstances, may warrant a reasonable inference of guilty intent. Here there was no larceny or other felony actually committed, 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, sec. 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 cannot be seen or felt, and if felonious, is not usually *Page 311 announced, so where no felony has been actually consummated (in which case the intent may be 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 defense.
The jury was relieved from any consideration of the intent (398) charged in the second count of the indictment by the charge of his Honor. Of this the prisoner certainly could not complain, unless it be error, in considering the intent to steal, 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 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." Wharton'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 demonstrated 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 byPark, 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 *Page 312 S. v. Boon, 13 Ired., 244, and S. 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 related to the crime of burglary, a capital felony, and if deemed of sufficient weight to warrant the jury in (399) 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.