(dissenting):
The opinion holds that the evidence is not sufficient to warrant the jury in finding that the prisoner intended to steal •at the time he broke and.entered the building. The intent may properly be inferred from the act of breaking and entering, when no other purpose therefor is made to appear. The accused offered no explanation for it, except to swear he did mot remember to have been in the building. Did not the jury have to determine the value of his testimony ? They may "not have believed him; evidently they did not. A witness Tor the state swears the prisoner admitted, when arrested in *755tbe building, that be intended to take whatever he could find, and his only denial of that statement is that he does not remember what he did. His statement at the camp car, that detectives were after him and his act in breaking open the station door in hearing of the occupants of the car may both have been rational. It does not appear how long he had been absent from the car before he battered open the station door. It may have been two and a half hours, and he may have thought the men in the car were then sound asleep and would not be easily wakened at the early hour of two o’clock in the morning. It, is proven by his own witnesses that he had been accused of violating the law, just across the river in the state of Ohio, and his statement, apparently irrational, that detectives were after him, may have been a reasonable supposition originating in a guilty conscience. That he had been drinking hard some days before,, what he did on the day he was arrested, together with all the other facts in the case, bearing on the condition of his mind, are, in my opinion, sufficient evidence to carry the case to the jury on the question of the prisoner’s mental capacity to entertain a specific intent and whether he actually had such intent to steal. In view of that evidence the court gave the following instructions, most favorable to the accused:
“The Court instructs the jury that the defense that the defendant had been drinking to excess and was so intoxicated .that he did not know what he was doing or did not know that he was doing wrong at the time he entered the building in question is a denial of criminal intent, and throws upon the State the burden of proving such criminal intent beyond all reasonable doubt, and the defendant is not required to establish such defense by a preponderance of the evidence. And unless the jury find from the evidence that the state has proved such criminal intent beyond all reasonable doubt, you will find the defendant not guilty.”
Insanity is not proven and the evidence respecting his alleged irresponsibility, as a result of intoxication, is not so clear as to warrant the court in holding that it does not support the verdict. The jury had the right to decide, from all the prisoner said and did, that he "was capable of having, and *756did have a specific intent to steal when he broke and entered the building. That he found nothing that he could appropriate is not material. I would affirm the judgment.