People v. Morton

Foote, C. The defendant was convicted of burglary in the second degree. He contends that the judgment therein rendered against him and the order denying his motion for a new trial should be reversed.

His first ground therefor is that the evidence was insufficient for his conviction.

[63]Upon a careful examination of the record, we are satisfied that the jury were fully warranted in believing and declaring by their verdict the defendant guilty as charged.

It is assigned for error that the court, in a portion of its charge, indulged in a presumption against the defendant for not testifying in his own behalf.

The language objected to is as follows:—

“You all know that the intent is a simple mental operation, and we cannot, unless the defendant himself speaks,—it is not possible to,—give any direct, positive proof of the intent of any person in the commission of any act; you cannot look into the human mind and see what its workings are. The prosecution can never in any case, unless the defendant himself sees fit to speak, give any direct or positive evidence of the intent.”

The defendant did not go upon the stand and testify.

We fail to see anything in the words above quoted, taken together with the rest of the charge, which announces to the jury in the remotest degree that any presumption should be indulged against the defendant, because he did not give evidence as a witness in the cause.

The jury were simply told that intent might be inferred from the facts and circumstances surrounding the transaction, in the absence of any declaration upon that subject which had emanated from the defendant.

As a part of the charge, this language was employed: —

“Now, gentlemen, there is a proposition of law, which may or may not be involved in this case, as you determine the facts, but it is eminently proper that I should give it to you, and that is, that all persons concerned in the commission of a crime,” etc.

It is not contended that the portion of the charge which immediately follows this is erroneous, but that the court in uttering the words quoted left to the jury, as their province, to say whether or not the rule of