510 BARRETT- V-.- ST-A-TE. - [188 BARRETT V. STATE. Crim. 3867.
Opinion delivered- January 8, 1934. 1. LARCENY—VALUE OF PROPERTy.—Evidence held to sustain a finding that property stolen by accused exceeded $10, sustaining a conviction of grand larceny. 2. BURGLARY—INTENT.—Accused committed a burglary when he broke and entered a house in the . night time with intent to commit a felony, regardless of whether the value of property stolen exceeded $10. -Appeal from Arkansas Circuit Court, Northern District ; W. J. Waggdner, Judge ; affirmed. M. F. Elms, for appellant. • • • Hal L. -Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee. SMITH, J. Appellant was tried under an indictment containing two counts, and was convicted upon . each of them. The first charged him with the commission of the crime of burglary ; the second with that of grand larceny. It is insisted that the testimony is insufficient .to sustain either ,charge, and, it is especially urged that the conviction for grand larceny must be reversed for the reason that the property obtained upon entering the house broken into did not exceed ten dollars in value. The stolen property consisted principally of wearing apparel and a leather land bag, and the owner stated the aggregate value of all the stolen property was between thirty-five and forty , dollars. He was asked the value of the hand bag, as well as that of other .articles stolen, and_ stated that the bag cost $25, but he was not asked, and did not state, what its value was , at' the time it was stolen. .He was asked about the shirts which had been-stolen, and stated there were four of these, and that they were. worth a dollar each. The owner stated that nine pairs of socks were stolen, worth fifty cents a pair. He also testified that some handkerchiefs arid some underwear were taken, but did not .state the quantity or value of these articles. Appellant testified that he had one suit of the underwear, and, when asked its value, stated that it was worth "about a dollar or a dollar and a half."
ARK.] BARRETT V. STATE. 511 -In the case -of Cushi v. • State, 180 Ark. 451, 21 S. W. (2d) 61:6;-the accused was charged with having stolen cotton -worth from five to seven cents• per' pound, and it was there said that the jury was . at liberty to accept any figure between the minimurh and -maximum value of the property as shown by the testimony. And the jury was warranted here in finding that the value-of.the underwear was $1.50, it being unlikely that appellant would have overvalued it, in view of the importance of this testimony and its consequences to him: This makes a .Value of $10, and, if any* value -is , given to the handkerchiefs and the hand_bag; 'an aggregate value in excess of 'ten dollars was shown, 'and this is sufficient to suStain the charge of grand larceny.. Section 2488,- CrawfOrd & Moses' Digest ; Jacks o . it v._ State; 73. Ark.101, 83 S. W. 651. . What'we have said 'abont the value -of. -the property stolen is sufficient to 'dispose of the insistence that the testimony failed to show that av delling houSe was brolten into and entered with the intention of coMinitting a felony. .*-_ HoweVer,' the crime of burglary Might be complete even though the Vahm of the Stolen propertY did nOt exL ceed ten dollarSi; indeed', it might be enmplete when the intended felony was not committed atall, as, for instance; in the case of a burglar who, having broken and entered, fled upon having his presenCe discoYered before he had consummated his intention. It is : true, of course, that' to constitute burglary a breaking and entei'ing 'rhust'have been . done "with the intent fo 'commit a . felony." Section 2432, Crawford & . Moses''Digest. But . it. .\YAs- not insisted at the, trial from which this aiipearcomes 'that appellant broke . into and entered the 'house with. the intention of committing only the offense Of 'petit larceny; which is not felony.. In the case of Shaeffer , y. State, .61 Ark. 211, 32 S. W. 679, it was held to be error to refuse an instruction upon the trial of an accused for burglary, that if "the defendant ,did in fact break and enter the house of B. C. Black, with intent to commit petit larceny only," he was not guilty of bUrglary.
512 -BARRETT V. STATE: [188 - In . the instant case, no such instruction. was •asked, nor does there appear to have been any testimony upon which it could have been based, as appellant made no contention that he intended only to commit the crime of petit larceny. His contention is that he did not commit burglary because the value of the stolen property did not exceed ten dollars. In the. case 'of- Harvick v.. State, 49 Ark. 514,- 6 S. W. 19, a burglary conviction was sustained although the property stolen was stated in the opinion to be of a value less than ten. dollars. It was there §aid that : "It was.not necessary, in order to complete -the crime of • burglary, that his anterior intent" (to steal) " should have been consummated." • In that -case the burglar broke into a barber shop and *carried off five or six dollars which he found in a small safe. It was insisted that this money, together with , .other articles stolen, did not exceed ten dollars in Value, and that .the crime of burglary had not been committed for that reason. In overruling this contention it was said: "But ik there had been no other property" (in the shot') " except that taken, the case would not be altered. The prisoner intended to take all the money there *as in the safe. He testified to - that fact upon the stand. He did not knOw that it contained less than ten dollars. His intent was to . take more than that sum if he could find it, hence the intent to commit a felony." The clear implication of that opinion is that the burglar, who has broken and entered with the generafintent to steal, may not escape the consequences of his act because of the fortuitous circumstance that his loot WaS not as valuable as he anticipated it would be. See DIffen v. State, 156 Ark. 252, 245 S. W. 823, and cases there cited. - We conclude therefore that the testimony was suffi-_cient to sustain the conviction npon each count, and the judgment must therefore be- affirmed. It is so ordered.
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