Opinion
June, 1840.
J. M. Clayton and J. A. Bayard, for prisoner.
The prisoner was indicted for burglary, with intent — 1st, to steal the goods of John Sipple; and 2d, to ravish Deborah Sipple.
It was proved that the prisoner attempted in the night time to break into the dwelling-house of Sipple, where his wife and two children were sleeping; that he succeeded in getting his arm and hand in; but was successfully resisted by Mrs. Sipple.
A witness was called to prove a confession, made by the prisoner in the presence of a magistrate. He did not know whether the confession was reduced to writing or not. It was now suggested for the prisoner that, as the law required the magistrate to take the examination of the prisoner in writing, the court would presume him to have done his duty; which the court ruled in conformity to the English decisions. (2 Russ. on Cr. 656-7.)
The magistrate then stated that he had reduced the confession to writing, but the defendant had refused to sign it; and the question arose whether this statement, signed by the magistrate, but not by the defendant, was evidence, so as to exclude other proof of the confession.
The Court said, that in Lamb's case it was decided that where the confession was read over to the prisoner, and he said "it is all true enough," but declined to sign it; the confession was admitted in evidence.
The magistrate then said that he neither admitted nor denied the correctness of the confession as taken down at the time; but refused to sign it.
The written examination, taken down by the magistrate, is admitted in evidence, to the exclusion of parol proof by witnesses of what was said on that occasion; only on the ground that such written statement is more correct and accurate than the memory of witnesses. But such statement can have no force, unless recognized by the prisoner to be a true statement of his confession. Such recognition must be by signing the paper, or expressly admitting its truth after hearing it read. An admission implied by silence will not do.
This being necessary in our judgment to make the statement evidence, as the admission is not proved, parol proof of the confession may be given The confession amounted to nothing in reference to the intent; and the prisoner's counsel asked the court to direct an. acquittal, on the ground that there was no proof of the distinct felony which the prisoner intended to commit. The intention to do a distinct crime must be laid and proved. (2 Russ. on Cr. 35.) Here there was no more proof of the intent to steal, than of the intent to murder; no more proof of an intent to commit a rape, than of an intent to fire the house.
Burglary is a very technical crime; the breaking and entry are entirely technical, and different from the usual understanding of breaking and entry; but the law makes another ingredient necessary, the intent to commit murder, rape, robbery or some other felony. The intent then is of the essence of the offence, and the prosecution must point the intent and prove that it was for the purpose of committing some specific felony; and unless this he required, there is no distinction between burglary and house breaking in all those cases where the party does not actually enter, and only makes a technical breaking. For, not being in the house, his particular intent cannot be manifested; unless such intent is otherwise proved, as by declarations, c. By the Court. — In a clear case where no evidence is offered tending to prove any felonious intent charged in the indictment, the court would arrest the prosecution; but they will always be careful in interposing between the State or prisoner and the jury, in a consideration of the facts.
The indictment for burglary must lay a felonious intent, and such intent must be proved. It may lay several intents in several counts; one of which must be proved. This indictment lays two intents, viz: to steal, and to ravish; and the question is, whether there is any evidence which the court ought to suffer to go to the jury, tending to prove either of these intents. It being proved that the prisoner in the night, attempted to force open the door of a house in a retired situation, and in which he knew there was an unprotected female; and this after he had made a technical breaking and entering of the house, by opening the window and thrusting his hand through the door; we cannot feel justified in stopping the cause and saying, there is no evidence upon which the jury may find the intent to ravish. We shall, however, say to the jury, that they must be satisfied that the evidence proves the identical intent charged, and that the prisoner is entitled to the benefit of any doubt.
Judge Layton dissented, thinking there was no evidence which ought even to be left to the jury to find a felonious intent.
The defendant was acquitted.