Summary
In Hill v. State, 226 Miss. 445, 84 So.2d 679, the property was described as: "one hay mower, of the value of $75, good and lawful money of the United States, then and there the personal property of Ross Brown, Barry Brown * * *."
Summary of this case from Barnes v. StateOpinion
No. 39869.
January 16, 1956.
1. Indictments — grand larceny — constitutional law — indictment sufficient.
Indictment charging that defendant took, stole and carried away one hay mower of the value of $75, then and there the personal property of named persons was sufficient to inform defendant of the nature and cause of the accusation against him, as required under the Constitution. Sec. 26, Constitution 1890.
2. Indictments — grand larceny — absence of demurrer — amendable defect.
In absence of demurrer to indictment charging grand larceny and alleging ownership of stolen property in two named persons, omission of the word "and" between names of alleged owners was an amendable defect of which defendant could not complain after verdict or by request for peremptory instruction. Sec. 2449, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Lafayette County; TAYLOR H. McELROY, Judge.
Kermit R. Cofer, Water Valley, for appellant.
I. The indictment is so vague, uncertain, and indefinite, and so utterly fails to advise the defendant of the nature and cause of the accusation against him, that he could not plead former conviction or former acquittal, and is fatally defective. Cohran v. State, 219 Miss. 767, 70 So.2d 46; Reed v. State, 171 Miss. 65, 156 So. 650; Rutherford v. State, 196 Miss. 321, 17 So.2d 803; Sec. 26, Constitution 1890.
II. The Court erred in not granting peremptory instruction to defendant. Johnson v. State, 186 Miss. 405, 191 So. 127; McDowell v. State, 68 Miss. 348, 8 So. 508; Ezell v. State, 158 Miss. 343, 130 So. 487; Robinson v. State, 180 Miss. 774, 178 So. 588.
III. The verdict of the jury was contrary to the overwhelming weight of the evidence and evinced bias and prejudice on the part of the jury; and, for that and other reasons assigned, our motion for new trial, seasonably made, should have been sustained.
IV. The Court erred in overruling our timely requests for delay in the trial until Bose Perry's presence could be had, and it is here shown that we were greatly prejudiced thereby. Montgomery v. State, 85 Miss. 330, 37 So. 835; Knox v. State, 97 Miss. 523, 52 So. 695.
V. The Court erred in the granting of the instruction appearing at R. 76, at the request of the State. This instruction charges the jury that, as to ownership of the property, it only had to find the property to be "then and there the personal property of Ross Brown and Barry Brown." This instruction is thus at variance with, and a fatal departure from, the indictment which does not lay the ownership in Ross Brown and Barry Brown. The instruction, being thus inconsistent with the indictment, should not have been granted, and its being granted was highly prejudicial to defendant and was reversible error.
Joe T. Patterson, Asst. Atty. Gen., Jackson for appellee.
I. Appellant first contends that the indictment herein is wholly insufficient, and that he could not plead former conviction or former acquittal, on account of the uncertainty and indefiniteness of the indictment. We will first point out that appellant did not demur to the indictment as required by Section 2449, Code of 1942. Moreover, the indictment sufficiently charges the crime of grand larceny in that it charges the appellant with the taking, stealing and carrying away, on February 6, 1953, in Lafayette County, Mississippi, one haymower of the value of $75.00, the personal property of Ross Brown, Barry Brown. It is true that the indictment did not allege the mower to be an "Oliver" mower as shown by the proof. However, the indictment could have been amended to conform to the proof had this question been raised during the trial. The same is true with reference to the allegation of ownership. Although the indictment alleges the property to be that of "Ross Brown Barry Brown," it is obvious that this is a typographical error wherein the word "and" was omitted. The omission of the word "and" did not leave the indictment vague in any way whatsoever as to the ownership of the property. Clark v. State, 206 Miss. 701, 39 So.2d 783.
II. At the conclusion of the State's evidence, appellant moved the Court to peremptorily instruct the jury to find the defendant not guilty. This motion was overruled by the Court, and the appellant proceeded to put on his proof, thereby waiving any error that may have been committed by the Court in overruling this motion. However, appellant did request an instruction directing the jury to acquit the defendant.
III. Appellant's guilt or innocence of the crime charged presented an issue of fact that was properly submitted to the jury. McDougal v. State, 199 Miss. 39, 23 So.2d 920; Bester v. State, 222 Miss. 706, 77 So.2d 270; Shoemaker v. State, 222 Miss. 257, 75 So.2d 647.
IV. Appellant contends that the Trial Court erred in refusing to grant a continuance to a later day in the term on account of the absence of appellant's witness, Bose Perry. Appellant's motion for a new trial shows that this witness had been present in Court during the first few days of the term, and was present in the courtroom on the day appellant's motion for a new trial was made following the day of appellant's trial and conviction. The proof herein shows that the testimony of this witness would have been in the main cumulative, it being alleged that this witness would have testified that appellant came to the home of Bose Perry on the date it is alleged that the mower was stolen, and talked with said Perry about the purchase of a pair of mules.
V. Appellant contends that the Trial Court erred in granting the State's instruction appearing on page 76 of the record, in that the instruction authorized the jury to find the property to be "then and there the personal property of Ross Brown and Barry Brown," when the allegation in the indictment laid the ownership in Ross Brown Barry Brown." As heretofore stated, such was obviously an omission of the word "and," which could have been corrected by amendment had such question been raised during the trial of the case.
The appellant, R.V. Hill, was convicted of the crime of grand larceny and sentenced to the penitentiary for a period of one year, from which judgment he appeals.
The appellant first contends that the indictment is insufficient and defective in that it fails to comply with the provisions of Section 26 of the Mississippi Constitution, which requires that the defendant shall be informed of the nature and cause of the accusation against him. The indictment, omitting the formal parts, charges: "R.V. Hill late of the County aforesaid, on or about the 6th day of February 1953, in said County and State, did then and there wilfully, unlawfully and feloniously take, steal and carry away one hay mower, of the value of $75.00, good and lawful money of the United States, then and there the personal property of Ross Brown Barry Brown."
(Hn 1) We are of the opinion that this assignment is not well taken. In the case of Jones v. State, 51 Miss. 718, the Court held that an indictment for the larceny of a mule which described the mule as "one mule, the property of William Adkins, of the value of $100," is sufficient. The Court further stated that in an indictment for stealing a horse, it is not necessary to state the color, age, or any other particulars concerning it by way of description, or identity.
(Hn 2) The appellant also contends that the court erred in refusing a requested peremptory instruction on the ground that there was no proof of ownership of the property as charged in the indictment, wherein the indictment alleged ownership in "Ross Brown Barry Brown." In the absence of a demurrer, this was an amendable defect and the appellant can not complain of such defect after verdict. Section 2449, Mississippi Code of 1942, reads as follows:
"All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward; and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared." From an inspection of the indictment, it is obvious that the word "and" was omitted between the names Ross Brown Barry Brown.
In the case of Williamson v. State, 167 Miss. 783, 149 So. 795, the Court held that the omission of the word "by" from a robbery indictment was a mere clerical error and was an amendable defect under the provisions of Section 2449, supra, and in the absence of a demurrer could not be complained of after verdict, and cited Neilson v. State, 149 Miss. 223, 115 So. 429; Sullivan v. State, 150 Miss. 542, 117 So. 374; Winston v. State, 127 Miss. 477, 90 So. 177.
In Smith v. State, 132 Miss. 521, 97 So. 4, the Court said: "Conceding for the sake of the argument that the word `carry' must be followed by the word `away' in an indictment in order to charge an asportation, its omission here is manifestly a mere clerical error, and that the intent intended to be charged was `to carry away the goods, chattels,' etc., sufficiently appears from the allegation charging the commission of the larceny; consequently the appellant was fully informed of the nature and cause of the accusation against him. The demurrer therefore should have been overruled and the amendment to the indictment was unnecessary."
The requested peremptory was properly refused. Jackson v. State, 189 Miss. 672, 198 So. 625. We have carefully examined the other assignments of error and find them to be without merit.
Affirmed.
McGehee, C.J., and Hall, Kyle and Gillespie, JJ., concur.