Appeal from Second Judicial District Court, Washoe County; T. F. Moran, Judge.
Thomas E. Kepner, for Appellants.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, McCarran, J.:
This is an appeal from the judgment of the Second judicial district court and from the order of that court denying appellants' motion for a new trial. Appellants were convicted of burglary in the first degree, after having been tried on an indictment, the charging part of which reads a follows:
That said defendants on the 10th day of March, A. D. 1913, or thereabouts, and before the finding of this indictment, at and within said county of Washoe, State of Nevada, did then and there, wilfully, unlawfully, feloniously and burglariously enter that certain store situate at the southeast corner of Commercial Row and Virginia Street, in the city of Reno, county of Washoe, State of Nevada, with the intent, then and there, to steal, take and carry away the goods and chattels of Joseph Caton and A. J. Caton, co-partners doing business under the firm name and style of Joseph Caton & Son, in the said store contained; the aforesaid store being then and there owned by in the use, possession and occupancy of the said Joseph Caton & Son.
1, 2. The appellants in this case, after verdict and before judgment, moved the court for a new trial upon several grounds, one of which was that the verdict of the jury was contrary to the evidence and was not sustained by the evidence introduced in the case, for the following reasons: There is no evidence in this cause, and was no evidence before said jury, to show non-consent of the owners, or alleged owners, of said goods and chattels, to the alleged larceny, and it is a well-established rule of law that where the owner is called as a witness, in a case where the indictment charges a burglarous entry with intent to commit larceny, circumstances tending to show non-consent will not suffice, and the failure of the owner to testify as to non-consent is fatal.
As appears from the transcript and proceedings of the trial, Joseph Caton, the senior member of the firm of Joseph Caton & Son, and one of the owners of the cigar store alleged to have been burglarized, was called as a
witness in behalf of the state, and testified at length as to the location of the cigar store; the time at which he left the place on the evening of the 9th of March (the night before the burglary); as to having locked the place with a padlock at the time of leaving; and he further testified to having been called on the telephone by a member of the police force at about 2:30 on the morning of the 10th and as to having immediately gone to the cigar store and having found the outside window broken.
The last question propounded to the witness Caton by the state was as follows:
Q. Do you know of your own knowledge who broke into it? A. No, I do not.
The testimony of Captain Chas. Tremblay, one of the arresting officers in this case, is to the effect that between 2 and 3 o'clock on the morning of the 10th of March, he was in front of the Arcade saloon, a distance of one hundred and forty or one hundred and fifty feet from the cigar store alleged to have been burglarized. His attention was directed by the sound of breaking glass. He looked up the street and saw two men at the cigar store, and then he called his fellow officer and went up the street and found the defendants standing at the Cigar stand. Some of the merchandise was on the window sill, commonly used as a counter, and some was on the sidewalk. On the person of defendant Burke he found two packages of gum of the same kind and character as that contained in the showcase in the cigar store, which showcase he also found broken. At the time of the arrest defendant Patchen had a fresh bleeding wound on one of his fingers, and, as disclosed by the testimony at the preliminary examination, the officer discovered blood on some of the articles spread about the window sill. At the time of making the arrest the defendant Burke said that he was going to buy some tobacco. The defendant Patchen at or about the same time said that he and his partner came along and found the stuff on the sidewalk.
Counsel for appellants contends that the state failed to make out its case in that it did not show by the witness
Caton upon the stand that the breaking and entry were without his consent and in support of their contention, after paying a high tribute to the Supreme Court of Criminal Appeals of the State of Texas, cite the case of Ridge v. State, 66 S. W. 774, and Young v. State, 42 Tex. Cr. Rep. 301.
It will be observed from a careful consideration of the decisions rendered by the Court of Criminal Appeals of the State of Texas that in dealing with the subject of non-consent in burglary cases that court has taken many different positions, and in fact in a very recent case (Brown v. State, 125 S. W. 916) the court held that in a trial for burglary, where the indictment charges that the burglary was with the intent to steal, it is essential to both allege and prove the want of consent of the owner or person in possession, but even in that case the court held that proof of non-consent might be established by circumstantial evidence which would absolutely exclude every reasonable presumption that the owner gave his consent. It will be observed in this recent decision the court held that, in a case where the prosecution relied upon circumstantial evidence to prove non-consent, having the owner or party in possession on the stand as a witness, it was necessary, if the defendant objected to the proving of non-consent by circumstantial evidence, that he interpose his objections in the court below and bring the matter to the attention of that court at the proper time. In this respect the court said: There is no doubt of the correctness of this proposition, and had objections been made in the court below, and a proper bill of exceptions reserved, showing that such circumstantial evidence was objected to when tendered on the trial, this court would have been compelled to have held that the testimony was not sufficient.
It is our judgment that in a case of this kind the trial court should have been apprized of the position taken by the defendants at the proper time. As has already been stated, the Court of Criminal Appeals of Texas has announced contrary rules on several occasions on this subject.
In the case of McMahon v. State, 1 Tex. App. 105, that court said: But it is contended that the evidence does not show, in a satisfactory manner, that the taking was without the consent of the owner of the property. Whilst it is conceded that the want of consent of the owner to the taking, in a charge of theft, is a necessary ingredient to the crime, yet it is believed that this want of consent may be established by circumstantial, as well as direct, testimony. This we regard as a settled proposition, laid down by the elementary writers, and acted on by our own supreme court, without variation, from the decision in Henderson v. The State, 14 Tex. 503, down to the present time.
In the case of Erskine v. State, in the same report, at page 406, the same court said: It is held, when non-consent is an essential ingredient in the offense, as it is here, direct proof alone from the person whose non-consent is necessary can satisfy the rule. You are put to prove a negative, and the very person who can swear directly to the necessary negative must, if possible, always be produced. Other inferior proof cannot be resorted to until it is impossible to procure the best evidence.' (1 Phillips on Ev. 635.) * * * These rules have been so far modified, it seems, as that the want of consent may be proved by circumstantial evidence. * * * But this modification would not do away with the necessity of proving the want of consent to the taking, by the person whose consent was necessary, by either direct or circumstantial evidence. His consent being necessary to authorize the taking, so as to relieve the party from the consequences of taking without consent, his want of consent might be proved by circumstantial evidence.
It must be observed in the case at bar that appellants are charged with the crime of breaking and entering, with intent to commit larceny. The actual asportation is not charged. In the case of Ridge v. State, relied upon by appellants, the Court of Criminal Appeals of the State of Texas, in deciding that case, cited as authority the
case of Wisdom v. The State, 61 S. W. 926, and in the latter case it appears that, passing upon a similar question, they decided that proof of ...