Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 281
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1875.] FRANCO v. THE STATE. 281
Opinion of the Court.
act, the general design being to commit a felony, and that the
effect of the whole is to make the entrance of any part of the
body, however small, an entry within its meaning-provided
always that the intention be to commit a felony.
As to the second question, the fact that the house was broken
and entered at the time and in the way it was, by one who fails
to show any excuse, that there was valuable property there to
be taken, and no other known desired object, are sufficient to
support the finding of the jury that the intent was to steal.
Roscoe says, the intent of the parties will be gathered from
all the circumstances of the case. Three persons attacked a
house. They broke a window in front of the clock. They put
a crowbar and a knife through a window, but the owner resisting
them, they went away. Being indicted for burglary with
intent to commit a larceny, it was contested that there was no
evidence of that intent; Mr. Parke, J., said that it was for the
jury to say whether the prisoner went with intent alleged, or
not; that persons do not in general go to houses to commit
trespass in the middle of the night; that it is matter of alleviation
that they had the opportunity but did not commit the larceny,
and he left it to the jury to say whether, from all the
circumstances, they could infer that or any other intent.
(Roscoe on Ev., p. 367, ref. to 1 Levin, C. C. 37.) The case
referred to is not accessible, but Archbold, in a note, refers to it
and cites it in the same words. That author says, even the
very fact of breaking and entering in the night-time, raises a
presumption that it is done with the intent of stealing. Numerous
cases might be cited where convictions appear to have
been had and sustained without further evidence. (See Rex v.
Price, R. and R., 450; Rex v. John Smith, Id., 416. See also
Wharton, Am. Cr. Law, Section 1600.) Where under such evidence
as there is in this case a jury have found that the intent
of the party was to commit theft, the verdict will not be set
aside as unsupported.
The judgment is affirmed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/289/: accessed May 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .