Majority
p. 569(34 Misc. Rep. 332.) In re CORCORAN et al. (Supreme Court, Special Term, New York County. March 22, 1901.)
Headnote
Burglary—Misdemeanor—Commitment— Evidence—Sufficiency.Where defendants, who were professional thieves, entered and emerged from a bank building several times on a certain forenoon, conversed together, and again entered the building, then stood together on an adjacent corner conversing, and afterwards again entered the building, they were properly committed for trial under Pen. Code, § 505, providing that a person who, under circumstances or in a manner not amounting to a burglary, enters a building, or any part thereof, with intent to commit a felony or larceny, is guilty of a misdemeanor.
Habeas corpus for release by Peter Corcoran and others, committed for a misdemeanor.
Writ dismissed.
James W. McLaughlin, for petitioners.
Eugene A. Philbin, Dist. Atty., for the People.
The complaint charges that the prisoners did willfully and unlawfully violate the provisions of section 505 of the Penal Code under the following circumstances, viz.: That at about 10:45 a. m. on March 16,1901, they entered and emerged several times from the building occupied by the Union Square Bank; that they conversed with one another, and again entered said premises; that they then
p. 570
stood together on the adjacent corner, conversing, and again entered said bank,—these occurrences occupying about one hour. A police officer, regarding their conduct as suspicious, placed the accused persons under arrest, and the question is whether the circumstances stated are sufficient to warrant the holding of the prisoners under the statute referred to, which provides that “a person who, under circumstances or in a manner not amounting to a burglary, enters a building, or any part thereof, with intent to commit a felony or a larceny * * is guilty of a misdemeanor.” In addition to the circumstances stated, the fact is clearly sworn to that the prisoners are professional thieves, and that their pictures are in the rogues’ gallery at police headquarters. In order to convict under this section, no forcible entry is required. The entry, no matter how peaceable, if “with intent to commit a felony or a larceny,” is a misdemeanor. The intent essential must, in the nature of things, be determined from the facts and circumstances, and these are for the consideration of a jury. The facts that four professional thieves, acting in concert, enter a bank in this city, having no business calling them to the bank; that they frequently go in and come out from said bank, and that they converse together on the adjacent corner,—point to an intent to commit a felony or a larceny, and, unexplained, are sufficient to warrant a conviction. The prisoners were properly committed •for trial, and the writ must be dismissed.