Majority
p. 583Supreme Court. Essex General Term, July, 1855. C. L. Allen, Bockes and James, Justices. Obadiah Osborne pl’ff in error vs. The People def’ts in error.
Headnote
On a trial for burglary, it is no valid objection to evidence tending to characterize the burglarious intent of the acts charged, that the circumstances , offered to be proved, would, upon the trial of another and distinct offence, tend to convict the prisoner of such latter charge; but the intent with which the prisoner entered may be determined by proof of circumstances tending to show a felony committed in an adjoining store.Writ of error to the Saratoga county Sessions. The plaintiff in error was indicted with two others for burglary, in breaking and entering the grocery of one Hall in the night time with intent, &c. He was tried on the indictment at the Saratoga Sessions held in March last, and convicted.
The grocery of Hall, together with the shoe store of one Van Epps, were in the same building, each having a separate front door, and in no wise connected except that in the rear there was a passage way common to both. On the trial Van Epps was sworn as a witness, and during his examination was asked if he missed any boots from his store on the night of the alleged burglary. The question was objected to by the counsel for the prisoner, as irrelevant and improper. The objection was over
p. 584
ruled and the prisoner excepted. The witness answered: “I am certain I missed two pairs of boots, if not more; they were missing next morning; I saw them afterwards.” The counsel for prisoner objected to .the witness stating where he saw said boots “ as irrelevant and improper evidence; that if the boots were taken on the night in question and subsequently found at a place that' might lead the jury to believe the prisoner took them, it was not legal and proper evidence on the trial of this indictment.” The court overruled the objection, and the prisoner excepted. The witness answered: “I saw those boots the next day at the house of the father of prisoner; they were pulled from under the buttery floor.” It further appeared in evidence that the prisoner at the time lived at home with his father, and was seen fo enter his father’s house about twelve o’clock on the night in question, procure a light, enter the buttery, remain a short time and retire. It also further appeared that the entrance to the grocery was effected by the prisoner and his associates by first entering the shop of Van Epps, passing through the same into the common passage way and from thence through a window into the grocery.
D. Wright, for the plaintiff in error.
W. T. Odell, (Dist. Att’y,) for the defendants in error.
The counsel for the prisoner insists that the Court of Sessions erred in allowing, as evidence to characterize the intent of the acts charged as burglary in this indictment, proof of circumstances which upon a trial for another and distinct offence would tend to convict the prisoner of such latter charge; or in other words, that the intent with which the prisoner entered" the grocery of Hall, should not be determined by proof of circumstances tending to show a felony committed in the store of Van Epps.
It" is not to be- disputed, that as a general rule both in civil and' criminal cases, the evidence should be confined to the point in issue; and Phillips, in his treatise on evidence say.* “ In
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criminal proceedings the necessity for strictly enforcing this rule is stronger than in civil cases, for when a prisoner is charged with an offence it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer.” (1 Phil. Ev, 178.) Under this rule it would not be competent for the prosecution on the trial of a prisoner for an offence to give in evidence facts or circumstances tending to show the commission of another separate and distinct felony, for the purpose of raising an inference that the prisoner was guilty of the crime for which he was on trial.” (Ros. Cr. Ev. 73.) But to this general rule there are many exceptions. For the purpose of identifying the person charged as the criminal, the prosecution has been allowed to show that other goods than those mentioned in the indictment, upon an adjoining part of the premises were stolen the same night, and afterwards found in the prisoner’s possession. So where a man committed three burglaries in one night, and stole a shirt at one place and left it' at another, they were all so connected that the court heard the history of the three burglaries. (2 Leach, 285.) And all facts upon which any reasonable presumption or inference can be founded .as to the truth or falsity of the issue, are admissible in evidence. ( 6 Verm. 496 ; 2 Gill & John. 267.) Still facts and circumstances, tending to establish a separate and distinct felony from the one charged in the indictment on trial, .are not within the exception to the above mentioned general rule, unless so connected as to form a part of the same general transaction. Of such character were the facts and circumstances objected and admitted in evidence on the trial of this case. The acts of the prisoner and his associates while in the grocery of Hall, rendered it somewhat doubtful whether the entry was a burglary or a trespass; hence the necessity of proof to show the intent. The entry of store and grocery must be regarded as one connected transaction; and therefore proof of any facts and circumstancess tending to show the prisoner
p. 586
guilty of larceny in the store of Van Epps on that occasion, was proper evidence to go to the jury to characterize the intent with which I he prisoner broke and entered the grocery for which he stood indicted.
The ruling of the Court of Sessions was correct and a new trial is denied.