Summary
In Clinton v. State, 163 Miss. 435, 439, 142 So. 17, 18 (1932), we recognized that it was the person against whom the crime was directed who was important when we held that "insofar as the burglary is concerned, the occupant of the property at the time is the owner....
Summary of this case from Davis v. StateOpinion
No. 29904.
May 30, 1932.
1. INDICTMENT AND INFORMATION.
Defendant failing to call court's attention thereto waived demurrer to indictment.
2. BURGLARY. Indictment and information.
Allegations in burglary indictment regarding ownership of property burglarized constitute surplusage, occupant at time of burglary being owner so far as burglary is concerned.
3. BURGLARY.
In burglary indictment, allegation that burglarized house was corncrib, property of county wherein crime was laid, leased to named person, held to sufficiently allege ownership and describe premises.
4. INDICTMENT AND INFORMATION.
It is essential to allege that house burglarized is in county where crime is laid.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
Currie Currie, of Hattiesburg, for appellant.
The demurrer should have been sustained. The allegations in the indictment of the property of Forrest county, of the state of Mississippi was material and was not mere surplusage, and it was necessary for the state to prove that the title was in Forrest County, Mississippi.
In a prosecution for burglary it is necessary for the indictment to describe with reasonable certainty the house alleged to have been burglarized, and to allege ownership in some person other than the alleged burglar, because a man cannot commit burglary upon his own house. It is necessary in the prosecution of any case of burglary to prove what house was burglarized and who owned or occupied it.
The title of the land was alleged to be in Forrest county, one of the political subdivisions of the state of Mississippi, and if Forrest county owned the land its title was necessarily evidenced in and manifested by written documents containing a description of the land and these records or writing constituted the primary and only evidence of the title of Forrest County to the land.
The appellant was clearly entitled to a peremptory instruction because of the failure of the state to prove the description and title of the land.
This indictment was drawn under section 817, Mississippi Code of 1930 Annotated, and it was incumbent upon the state, to prove the title as laid in the indictment.
State v. Ellis, 102 Miss. 541, 59 So. 841; James v. State, 77 Miss. 370, 26 So. 929.
The indictment in this case does not allege that F.K. Malone was in the actual possession of the building. It merely alleges "and leased by F.K. Malone," which is far from alleging actual possession and occupancy.
Scott v. State, 62 Miss. 781.
Where the names of several joint owners are alleged, they must be precisely proved as laid though the statute requires but one name to be alleged.
Doan v. State, 26 Ind. 495.
The words "Forrest county, Mississippi" when used to describe the ownership so as to show where the title was were not mere surplusage.
Levy v. State, 42 So. 875.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Having proceeded to judgment in this case without calling up this demurrer for disposition, has had the effect of waiving this demurrer.
Home Insurance Company v. Bank, 71 Miss. 608, 15 So. 932.
Possession is enough as against burglars.
Wharton Cr. Law (10 Ed.), sec. 804.
And this is true even if the possession be wrongful possession.
1 McClain Cr. Law, sec. 508; Lewis v. State, 85 Miss. 35.
In this indictment the words "Forrest county, State of Mississippi" when used to describe ownership so as to show where the title was were mere surplusage.
Eugene Clinton, the appellant, was convicted of burglary and sentenced to serve a term of seven years in the state penitentiary.
A demurrer was interposed to the indictment, but, apparently, it was not presented to the court, as no order was entered thereon.
It was the duty of the appellant to call the attention of the court to his demurrer and have same disposed of, otherwise he must be held to have waived the demurrer.
However, in the objections to the evidence, the only point presented here worthy of consideration is in the nature of a contention that there is a variance between the evidence and the indictment, and that the indictment insufficiently alleges the ownership of the house shown to have been burglarized, and insufficiently describes the premises. The part of the indictment which is subject to this criticism is, leaving off the formal parts, in this language: "The house commonly called a corncrib, of the property of Forrest county, of the state of Mississippi, and leased by F.K. Malone, feloniously and burglariously," etc.
When the state began to introduce evidence, it offered a witness, Vanderford, a supervisor, who testified that Malone was in occupancy of the corncrib in question on property belonging to the county described by governmental subdivisions at the time of the burglary, in virtue of a lease from the county.
The objection was interposed throughout the record that the indictment alleged that the corncrib in question was owned by Forrest county, and that the words, "leased by F.K. Malone," constituted surplusage, and that it was necessary, in an indictment, to accurately describe the property, and that the deraignment of Forrest county's title was a necessary part of the proof, citing, in support thereof, James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. Rep. 527, and State v. Ellis, 102 Miss. 541, 59 So. 841.
We might add that the indictment further alleges that the house was burglarized with the intent to steal the goods and chattels of Malone then and there being, etc.
The state proved clearly that the corncrib in question was on land leased from the county and occupied by Malone, as charged in the indictment.
In the case of an indictment for burglary, allegations as to the ownership of the title to the property constitute surplusage, and, in so far as the burglary is concerned, the occupant of the property at the time is the owner, and no such particularization of description of property is required.
In State v. Ellis, supra, a demurrer was sustained by the lower court to an indictment for burglary, wherein it was charged that the burglary was of a car on the side track of the New Orleans, Mobile Chicago Railroad Company. There was no sort of charge of ownership in said railroad company or any other person, and this court held that the demurrer was properly sustained.
In James v. State, supra, the indictment properly laid the ownership in the Illinois Central Railroad Company, but the court declared that the record disclosed no proof whatever that any such railroad company existed.
In Wright v. State, 130 Miss. 603, 94 So. 716, the indictment alleged, and the evidence was in accordance therewith, that a named partnership was the owner of the burglarized house without setting out the names of the persons composing the partnership. This was held to be the equivalent of proving no ownership at all, as a partnership was neither an individual nor a corporation, nor any kind of legal entity.
In order to make clear the position of this court on the question of necessary evidence, we cite Lewis v. State, 85 Miss. 35, 37 So. 497, as controlling this case, wherein Judge CALHOON, as the organ of the court, in part, said: "The ownership of the property as charged in the indictment and shown in the evidence is sufficient. The charge is that the place was `a certain baker shop, the property of one William Grimes,' and the proof is that William Grimes had used and occupied it as a baker's shop for eighteen months. This is enough, though the fee simple of the house was in another person. Possession is enough as against burglars. Wharton, Cr. Law (10 Ed.), sec. 804. And this is true even if the possession be a wrongful possession. 1 McClain, Cr. Law, sec. 508."
We think the indictment sufficiently alleged the lessee, Malone, as being the owner, and that further description that the corncrib was on land owned by the county simply aided in making the location of the corncrib more certain. Certainly, it was surplusage. It is only necessary for the grand jury to ascertain the name of the person or corporation who owns the house or car at the time of the alleged burglary, and the pleader drawing the indictment need not exercise himself as to the title to the property. In this behalf the occupant is the owner. It would not be necessary to allege that a certain box car or house was on a certain described lot or tract of land. It must be alleged, however, that the house or car burglarized is in the county in which the crime is laid. See Brown v. State, 81 Miss. 143, 33 So. 170; 9 C.J. 1062, p. 115.
There is no merit in the other objections, and the evidence in the case was sufficient to sustain the conviction.
Affirmed.