
    The State v. Kennet, Appellant.
    
    Criminal Law: burglary : evidence. The evidence in this case examined and held to be sufficient to sustain a conviction of the charge of burglary
    
      Appeal from Dade Oireuit Court. — Hon. D. P. Stratton, Judge.
    Affirmed,
    
      
      McOluer & Bowling for appellant.
    The facts proven are not sufficient to show that a burglary was committed. State v. Kennedy, 16 Mo. App. 287 ; State v. Kennedy, 88 Mo. 341; Bex v. Smith, Ryan & Moody’s Crown Cases, Reserved H. L. 187, 1828; Russell on Crimes [5 Ed.] 786, 787. The indictment specially charges that the burglary was committed by raising the window; any other breaking will not support a verdict under this indictment.
    
      John M. Wood, Attorney General, for tne estate.
    The evidence' of the witnesses stands uncontradicted, and establishes both the burglary and the larceny beyond question, and the verdict and judgment should be sustained.
   Brace, J.

The defendant was indicted in the Dade circuit court for burglary and. larceny, was found guilty of both offenses and sentenced to the penitentiary for three years for the burglary, and for two years for the larceny.

The testimony in the case consists of the evidence of Frank Oarlock and his wife, by which it appears that between eight and nine o’clock on the night of the sixth of .Tune, 1888, after closing all the doors and windows of their dwelling house, except perhaps one between their bedroom and the . diningroom, they retired ; about two o’clock they were awakened, and, by the light of a lamp which was on the sideboard, they discovered the defendant in their bedroom, approaching their bed; Carlock spoke to him and asked him what he wanted there, and without making any reply he sprang forward, jerked Oarlock’s pants from under his head and retreated, taking them with him. He ran through the diningroom, jumped out of the dining-room window, which was then open, and disappeared.

On examination of this record we find no error in the indictment and none committed on the trial. The defendant by his counsel does not urge any here as to the conviction for larceny, but asks for a reversal of the sentence for burglary, insisting that there was not evidence sufficient to sustain the verdict as to that offense, i. e., that the evidence was not sufficient to prove that the defendant raised the window for his entrance, through which he escaped. There is not a particle of evidence tending to show an entrance in any other way than through that window; the other windows and doors were found closed as they were left. There is not a particle of evidence tending to show that the window was raised by any one else; it was closed when the family retired. That he raised it and entered through it for the felonious purpose which he immediately perpetrated is as certain as the fact established by positive evidence that immediately upon his discovery he made his escape through it. No rational mind with an ordinary knowledge of human nature could reach any other conclusion. There is nothing in this appeal, and the judgment is affirmed.

All concur.  