Opinion
No. 39144.
November 8, 1954.
1. Larceny — indictment — ownership of cow proved as laid in.
In prosecution for larceny of a cow, evidence was sufficient to warrant jury finding as to ownership of cow as charged in the indictment.
2. Criminal law — Court without authority to instruct — absence of request.
In such case, contention that Court erred in failing to instruct jury that jury might, under the evidence, find defendant guilty of a lesser constituent offense was without merit, as Court was without authority to so instruct, in absence of request for such instruction by either State or defendant. Sec. 1530, Code 1942.
3. Larceny — evidence — warranted conviction.
Evidence was sufficient to sustain conviction for larceny of a cow.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Choctaw County; HENRY L. RODGERS, Judge.
Jack B. Carlisle, Ackerman; Crawley Brooks, Kosciusko, for appellant.
I. Under the facts and under the law, there was a material variance between the ownership as alleged in the indictment and the ownership as it actually existed. For such reason, the Court should have sustained the original motion made by the attorney for the appellant to exclude the evidence on the ground that the testimony varied from the allegations of the indictment as to ownership; and the Court should have sustained the request or motion for a directed verdict at the close of the State's testimony; and the Court certainly should have sustained the request for a directed verdict. Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Hampton v. State, 99 Miss. 176, 54 So. 722; Hughes v. State, 74 Miss. 368, 20 So. 838; Johnson v. State, 186 Miss. 405, 191 So. 127; Jones v. Jones, 162 Miss. 501, 139 So. 873-4; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; McDowell v. State, 68 Miss. 348, 8 So. 508; McGaha v. State, 173 Miss. 829, 163 So. 442; Mapp v. State, 218 Miss. 30, 65 So.2d 257; Polkinghorne v. State (Miss.), 7 So. 347; Robinson v. State, 180 Miss. 774, 178 So. 588-9; Stewart v. First Natl. Bank Trust Co. of Vicksburg, 192 Miss. 355, 5 So.2d 683; Thomas v. State, 103 Miss. 800, 60 So. 781; Wiggins v. State, 215 Miss. 441, 61 So.2d 145-6; Sec. 455, Code 1942.
II. It is well settled that it is the duty of the Court to grant a new trial where the evidence is insufficient to support conviction. Conway v. State, 177 Miss. 461, 171 So. 16; Jefferson v. State (Miss.), 52 So.2d 925; Nichols v. State, 174 Miss. 271, 164 So. 20; Sims v. State, 32 So.2d 791.
III. Trespass less than larceny is a constituent part of the offense of grand larceny. Under an indictment charging grand larceny, the jury, under proper circumstances, may bring in a verdict finding the defendant guilty of a trespass less than larceny. It was the duty of the Court to advise the jury to this effect. Grant v. State, 172 Miss. 309, 160 So. 600; Morris v. State (Miss.), 174 So. 562; Simmons v. State, 194 Miss. 398, 12 So.2d 139. Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. There was no fatal variance between the testimony and the allegations of the indictment as to the ownership of the cow alleged to have been stolen. Horne v. State, 165 Miss. 169, 147 So. 310; Minneweather v. State (Miss.), 55 So.2d 160; Sec. 1987, Code 1942.
II. The evidence in the case at bar presented a clear-cut issue of fact that was properly submitted to the jury, with proper instructions, for its determination of the guilt or innocence of the appellant.
III. Juries are empaneled to try such issues of fact, and where there is sufficient evidence to support the verdict of the jury, as there is in this case, this Court cannot set the verdict aside, if no other errors appear in the record. Clanton v. State (Miss.), 49 So.2d 267.
IV. The trial court cannot be held in error for a failure to grant instructions that were not requested by the appellant. Tiner v. State, 214 Miss. 551, 59 So.2d 287.
The appellant was tried in the Circuit Court of Choctaw County on an indictment charging him with the larceny of a cow of the value of $175.00, the property of Pearl Robinson. The jury returned a verdict of guilty, and asked for the mercy of the court, and he was sentenced to a term of two years in the state penitentiary. He prosecutes this appeal, contending (1) that the trial court erred in overruling his motion for a directed verdict upon the ground that there was a fatal variance between the indictment and the proof as to the ownership of the cow, and (2) that the court erred in failing to instruct the jury that they might, under the evidence, find the defendant guilty of a lesser constituent offense, towit, trespass, and (3) that the evidence is insufficient to support the conviction and that the court therefore erred in denying the request of the defendant for a peremptory instruction.
(Hn 1) Without detailing the evidence as to the ownership of the cow, it is sufficient to say that we think there was ample evidence to warrant the jury in finding that Pearl Robinson was the owner of the cow as charged in the indictment.
(Hn 2) Neither the State nor the defendant requested an instruction that the jury might find the defendant guilty of a lesser constituent offense, and in the absence of such request, the court was without power to so instruct the jury. Under our statute, Section 1530 of the Mississippi Code of 1942, the court cannot instruct the jury sua sponte. Alexander's Mississippi Jury Instructions, Section 3; Canterbury v. State, 90 Miss. 279, 43 So. 678. The contention of the appellant that the court erred in failing to instruct the jury that they might, under the evidence, find the defendant guilty of a lesser constituent offense is, therefore, in our opinion, not well founded.
(Hn 3) We have carefully reviewed the evidence as a whole. It presents an issue of fact for the determination of the jury on the question of the guilt or innocence of the appellant, and there is, in our opinion, sufficient evidence to support the conviction. Under these circumstances, we are not warranted in disturbing the verdict of the jury.
It follows that the judgment of conviction must be, and it is, affirmed.
Affirmed.
McGehee, C.J., and Hall, Lee and Kyle, JJ., concur.