OPINION
RABINOWITZ, Justice.
After trial by jury appellant was found guilty of the crime of attempted larceny in a building and sentenced to three-years imprisonment.
We have concluded that the judgment and commitment entered by the superior court should be affirmed.
Appellant’s initial contention is that the trial court erred in not granting his motion for judgment of acquittal. As part of this specification of error, appellant appears to contend that there was insufficient evidence as to the requisite element of intent to steal. We disagree.'
When presented with a specification of error of this nature, this court will consider “only those facts in the record most favorable to the state and such reasonable inferences as the jury may have drawn from them * *
The record is reviewed in this light in order to ascertain whether “fair minded men in the exercise of reasonable judgment could have differed on the question of whether [appellant’s intent to steal] had been established beyond a resonable doubt.”
Under the foregoing test, we hold that there was sufficient evidence produced pertaining to the issue of intent to warrant affirmance of the trial court’s denial of appellant’s motion for judgment of acquittal. A brief
recapitulation of the relevant portions- of the record is pertinent here.
In regard to the crime of attempted larceny in a building, the indictment charged that appellant perpetrated the crime on February 17, 1966, in the laundry room of Building 35 of the Hollywood Vista Apartments in Anchorage.
The gist of the offense was that appellant had attempted to steal United States coins from-a coin-operated washing machine which was owned by Imperial Vending Company, Inc.
: As part of the state’s case John Ball, a-major stockholder in Imperial Vending Company, gave the following testimony: For several months prior to February 17, 1966, the corporation (which had coin-operated -machines placed at numerous locations throughout the Anchorage area) had experienced pilferage of the contents of its ,washing machines’ coin boxes. Early in the evening of February 17, 1966, the witness Ball secreted himself in a closet directly across the hall from the laundry room door in Building 35 of the Hollywood Vista Apartments. He stationed himself on a four-foot step ladder which enabled him to gain an unobstructed view of the laundry room from over the top of the closet’s eight-foot wall. According to Ball, for the first few hours of his watch, the laundry room was occupied by familiies washing and drying clothes.
Business then subsided until just before 10 p. m. when the witness heard two men coming 'down the hallway. Ball then testified that:
When they came to the laundry room, the younger [of the two] * * * stopped in the laundry room door * * and faced in the laundry room. Mr.-Gargan went in and knelt at the first' machine on the right and started screw-, ing the lock out.
While appellant was so engaged, Ball observed that the younger man was standing “in the laundry room door glancing up and down the hall [in] * * * either direction.” Ball then shouted to the two men to lie down on the floor of the laundry room. Appellant then stood up and started running toward the laundry room door at which point Ball shouted, “Stop, or I’ll shoot.” After a brief period of hesitation, the two started to run again. Ball then fired and wounded appellant in the side.
Later in his testimony Ball was asked what appellant was doing with his hands when Ball had observed him kneeling in front of the washing machine. The witness answered, “He was turning it in a counter-clockwise motion.” Subsequently, Ball testified that it would take four or five turns (with a key) to unscrew the lock on the washing machine’s coin box.
In this regard the witness also related that on the morning following the events in question he “inserted [his] key in the lock [of the washing machine before which appellant had knelt] and it took approxi
mately, well, I just started to turn it and the door fell off.”
We are of the opinion that Ball’s testimony was, in itself, sufficient to permit the issue of appellant’s larcenous intent to be submitted to the jury, and further furnished an adequate evidentiary basis for the jury’s guilty verdict.
In short, we hold that fair-minded men in the exercise of reasonable judgment could have differed on the question of whether appellant had the intent to commit the crime of larceny and whether appellant had committed an unequivocal overt act towards its completion.
As a second facet of his argument concerning the lower court’s denial of his motion for judgment of acquittal, appellant seems to take the position that error was committed due to the prosecution’s failure to prove that any coins were contained in the machine which appellant allegedly attempted to open.
We are of the opinion that the portions of John Ball’s testimony, which we have previously mentioned, furnish a sufficient evidentiary basis for the jury’s drawing the reasonable inference and conclusion that there was money in the coin box of the washing machine at the time in question.
Alternatively, we are of the view that the lower court’s ruling can.be sustained even though the machine’s coin box was in fact empty. In short, we adopt the “empty pocket doctrine.” : ■ ■
In People v. Rollino
the court stated in part:
Examples of cases in which
attempt
convictions have been sustained on the ' theory that all that prevented the consummation of the completed crime was a ‘factual impossibility’ [as distinguished from a “legal impossibility”] are;
⅝ ⅜ ⅜ ⅝
i'fi
⅜
(b) An attempt to steal from an empty receptacle (Clark v. State, 86 Tenn. 511,
8 S.W. 145) or an empty house. (State v. Utley, 82 N.C. 556)
We are of the opinion that a factual impossibility which was not apparent to the actor at the time should not, as a matter of policy, insulate him from conviction for attempting the commission of the offense. We, therefore, hold that the trial court did not err in denying appellant’s motion for judgment of acquittal.
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OPINION
RABINOWITZ, Justice.
After trial by jury appellant was found guilty of the crime of attempted larceny in a building and sentenced to three-years imprisonment.
We have concluded that the judgment and commitment entered by the superior court should be affirmed.
Appellant’s initial contention is that the trial court erred in not granting his motion for judgment of acquittal. As part of this specification of error, appellant appears to contend that there was insufficient evidence as to the requisite element of intent to steal. We disagree.'
When presented with a specification of error of this nature, this court will consider “only those facts in the record most favorable to the state and such reasonable inferences as the jury may have drawn from them * *
The record is reviewed in this light in order to ascertain whether “fair minded men in the exercise of reasonable judgment could have differed on the question of whether [appellant’s intent to steal] had been established beyond a resonable doubt.”
Under the foregoing test, we hold that there was sufficient evidence produced pertaining to the issue of intent to warrant affirmance of the trial court’s denial of appellant’s motion for judgment of acquittal. A brief
recapitulation of the relevant portions- of the record is pertinent here.
In regard to the crime of attempted larceny in a building, the indictment charged that appellant perpetrated the crime on February 17, 1966, in the laundry room of Building 35 of the Hollywood Vista Apartments in Anchorage.
The gist of the offense was that appellant had attempted to steal United States coins from-a coin-operated washing machine which was owned by Imperial Vending Company, Inc.
: As part of the state’s case John Ball, a-major stockholder in Imperial Vending Company, gave the following testimony: For several months prior to February 17, 1966, the corporation (which had coin-operated -machines placed at numerous locations throughout the Anchorage area) had experienced pilferage of the contents of its ,washing machines’ coin boxes. Early in the evening of February 17, 1966, the witness Ball secreted himself in a closet directly across the hall from the laundry room door in Building 35 of the Hollywood Vista Apartments. He stationed himself on a four-foot step ladder which enabled him to gain an unobstructed view of the laundry room from over the top of the closet’s eight-foot wall. According to Ball, for the first few hours of his watch, the laundry room was occupied by familiies washing and drying clothes.
Business then subsided until just before 10 p. m. when the witness heard two men coming 'down the hallway. Ball then testified that:
When they came to the laundry room, the younger [of the two] * * * stopped in the laundry room door * * and faced in the laundry room. Mr.-Gargan went in and knelt at the first' machine on the right and started screw-, ing the lock out.
While appellant was so engaged, Ball observed that the younger man was standing “in the laundry room door glancing up and down the hall [in] * * * either direction.” Ball then shouted to the two men to lie down on the floor of the laundry room. Appellant then stood up and started running toward the laundry room door at which point Ball shouted, “Stop, or I’ll shoot.” After a brief period of hesitation, the two started to run again. Ball then fired and wounded appellant in the side.
Later in his testimony Ball was asked what appellant was doing with his hands when Ball had observed him kneeling in front of the washing machine. The witness answered, “He was turning it in a counter-clockwise motion.” Subsequently, Ball testified that it would take four or five turns (with a key) to unscrew the lock on the washing machine’s coin box.
In this regard the witness also related that on the morning following the events in question he “inserted [his] key in the lock [of the washing machine before which appellant had knelt] and it took approxi
mately, well, I just started to turn it and the door fell off.”
We are of the opinion that Ball’s testimony was, in itself, sufficient to permit the issue of appellant’s larcenous intent to be submitted to the jury, and further furnished an adequate evidentiary basis for the jury’s guilty verdict.
In short, we hold that fair-minded men in the exercise of reasonable judgment could have differed on the question of whether appellant had the intent to commit the crime of larceny and whether appellant had committed an unequivocal overt act towards its completion.
As a second facet of his argument concerning the lower court’s denial of his motion for judgment of acquittal, appellant seems to take the position that error was committed due to the prosecution’s failure to prove that any coins were contained in the machine which appellant allegedly attempted to open.
We are of the opinion that the portions of John Ball’s testimony, which we have previously mentioned, furnish a sufficient evidentiary basis for the jury’s drawing the reasonable inference and conclusion that there was money in the coin box of the washing machine at the time in question.
Alternatively, we are of the view that the lower court’s ruling can.be sustained even though the machine’s coin box was in fact empty. In short, we adopt the “empty pocket doctrine.” : ■ ■
In People v. Rollino
the court stated in part:
Examples of cases in which
attempt
convictions have been sustained on the ' theory that all that prevented the consummation of the completed crime was a ‘factual impossibility’ [as distinguished from a “legal impossibility”] are;
⅝ ⅜ ⅜ ⅝
i'fi
⅜
(b) An attempt to steal from an empty receptacle (Clark v. State, 86 Tenn. 511,
8 S.W. 145) or an empty house. (State v. Utley, 82 N.C. 556)
We are of the opinion that a factual impossibility which was not apparent to the actor at the time should not, as a matter of policy, insulate him from conviction for attempting the commission of the offense. We, therefore, hold that the trial court did not err in denying appellant’s motion for judgment of acquittal.
Appellant’s final point in this appeal is that the trial court committed error by virtue of its refusal to permit appellant to offer “demonstrative evidence of the re-enactment of the shooting.” After reviewing the entire record, we assume appellant has reference here to events which transpired during his own counsel’s cross-examination of the prosecution's chief witness, John Ball.
Until objected to by counsel for the prosecution, appellant’s counsel had the witness Ball fire an empty weapon three times while he ran in various directions. We hold that the trial court did not err in sustaining the prosecution’s objections to the continuation of appellant’s re-enactment of the shooting.
In regard to experiments and court room demonstrations, Professor McCormick states that:
The general requirement of similarity of conditions applied to experimental evidence generally, applies with equal force to experiments in court. Manifestly, the trial judge can best determine whether the confusion and delay incident to the court-room experiment outweigh its value, and his wide discretionary power to permit or exclude the experiment is constantly emphasized.
We find no abuse of discretion here.
The
judgment and commitment entered
below is affirmed.