Opinion
No. 47703.
February 18, 1974.
Appeal from Circuit Court, Forrest County, Stanton A. Hall, J.
Pittman, Pittman Pittman, Jon Mark Weathers, Hattiesburg, for appellant.
A.F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
Defendant appeals from a judgment of the Circuit Court of Forrest County convicting him of burglary with a sentence of imprisonment in the penitentiary for ten years.
Viewed in the light most favorable to the state, we find that the evidence failed to show that defendant was guilty of any greater crime than trespass. Detailing the evidence would serve no useful purpose since a case with this unique set of circumstances is not likely to arise again. It is sufficient to say that the proof does show conclusively that defendant was guilty of trespass. The conviction of burglary is reversed, and defendant is discharged on that charge.
Trespass is necessarily a component of every burglary. Implicit in the verdict finding defendant guilty of burglary is the finding that he was guilty of the constituent offense of trespass, Section 97-17-87, Mississippi Code Annotated (1972). Inasmuch as the jury has found the defendant guilty of the greater crime, and the evidence of defendant's guilt of trespass is conclusive, the judgment is affirmed as a conviction of trespass, and the case is remanded for sentencing on that charge. See Washington v. State, 222 Miss. 782, 77 So.2d 260 (1955).
Reversed in part, affirmed in part, and remanded for sentence.
SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.