dissenting:
I am unable to concur in the affirmation of the judgment. In the giving of the instruction quoted in the prevailing opinion, I think the qualifying words " except in so far as it is corroborated by other credible evidence” should have been added. In this particular case, however, the error was without prejudice for the reason that the defendant was the only witness in his own behalf, and was not corroborated by any evidence except in certain particulars by evidence offered upon the part of the state, and in these particulars the evidence was without conflict.
I think, however, the court committed reversible error in this case in refusing all of the instructions requested upon the part of the defendant.
The gist of the offense charged was the felonious intent. *399Defendant’s requested instructions Nos. 12 to 15, inclusive, were designed to impress upon the minds of the jurymen that the mere finding upon the person of defendant of tools and implements adapted to purposes of burglary was not alone sufficient to establish the criminal intent. The only instruction given by the court upon the subject of intent was of a most general character, and is as follows: "In every crime or public offense there must exist a union or joint operation of act and intention or criminal negligence. The intent or intention with which an act is done is manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the accused. As to the intent or intention with which the act charged is alleged to have been done, you must arrive at it from all the testimony in the case and from all the acts, conduct, and circumstances as shown by the evidence introduced before you. Criminal intent is usually proven as a deduction from declarations or acts;’
Where an instruction, requested by the defendant, correctly states the law, it should not be refused by the court unless already allowed, substantially, in other instructions to be given. It cannot, I think, be said that the refusal to give these instructions was not prejudicial to the defendant. The record shows that the jury had some difficulty in reaching a verdict and at one time reported that they were unable to agree upon a question of fact. An agreement was finally reached, and a verdict of guilty returned with a recommendation of mercy to the court. While the evidence was all circumstantial, it may be that a verdict of guilty would have been returned had these instructions been given; but that is a matter upon which courts are not permitted to speculate. The refused instructions went to a material point in the case, and were not, in my judgment, sufficiently covered' by other instructions given.