Opinion
No. 30378.
March 13, 1933.
1. LARCENY.
Affidavit charging defendant with stealing tomato plants valued at seventeen dollars, personal property of person named, charged offense under petit larceny statute (Code 1930, section 1010).
2. LARCENY.
Petit larceny statute and statute respecting larceny by severing fixtures are separate statutes containing separate and distinct elements to constitute crime (Code 1930, sections 1010, 1014).
3. CRIMINAL LAW.
Where affidavit charged stealing of tomato plants as personal property, offense under petit larceny statute, proof showing plants were growing when stolen proved different offense, and conviction could not be pleaded as res judicata against new trial under statute respecting larceny in severing fixtures (Code 1930, sections 1010, 1014).
4. CRIMINAL LAW.
Where affidavit charged offense under petit larceny statute, but proof showed offense under statute respecting larceny in severing fixtures, court should have granted peremptory instruction and held accused under bond for further proceedings (Code 1930, sections 1010, 1014, 1190).
APPEAL from Circuit Court of Copiah County.
Hugh B. Miller and Sim G. Salter, both of Hazlehurst, for appellant.
The original affidavit alleges: "did wilfully, unlawfully, feloniously take, steal out of the cold frame of affiant about two, thousand five hundred tomato plants valued at thirty-five dollars against the peace and dignity, etc." This defendant was tried for a felony, bound over to the grand jury and as an afterthought, the justice of the peace reduced the offense to a misdemeanor. Justices of the peace have no authority to write up a judgment after his court has adjourned. It is void if he does so.
The affidavit and all the testimony disclosed that the plants were a growing crop, and were growing in the soil at the time of the asportation. They were a part of the realty and not the subject of larceny. They were not personal property, but real property.
McQueen v. State, 65 So. 310.
Taken as a whole, the proof showed that the defendant could not be guilty of larceny, but of trespass, if guilty at all.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It has been held that the failure of the justice of the peace, after a trial and conviction and the adjournment of his court, to enter judgment against the accused, being merely clerical, affords no ground for the offender's discharge.
Lunenberger v. State, 74 Miss. 379, 21 So. 134.
The judgment of the justice of the peace shows that the court considered that the value placed upon the tomato plants by the state witnesses was too high and had three disinterested men sworn and put on the stand and from their testimony held that the defendant was guilty of petit larceny, rather than grand larceny. This action of the court was favorable to the right of the defendant, rather than unfavorable and neither the judgment nor any other part of the record bears out appellant's contention that the defendant was bound over to await the action of the grand jury on a charge of grand larceny.
Appellant's next argument is that these tomato plants were not subjects of larceny, but that at most the taking of such plants would constitute a trespass.
In making this argument appellant is standing on the old common law rule, which sustains his contention and, if the common law rule had not been modified by statute, I would have to confess that his position was well founded.
However, the common law rule has been modified in this state, as shown by section 1014 of the Mississippi Code of 1930.
Argued orally by Sim G. Salter, for appellant, and W.D. Conn, Jr., for the state.
The appellant, O'Neal, was convicted of petit larceny, the original affidavit before the justice of the peace, leaving off the formal parts, reading as follows: "That on or about the 29th day of March, 1932, in aforesaid county and state, and in justice district No. 4, that C.E. O'Neal did wilfully, unlawfully, feloniously, take, steal out of the cold frame of affiant about two thousand five hundred tomato plants valued at thirty-five dollars." The justice of the peace convicted the appellant of petit larceny, and he appealed to the circuit court where the affidavit was demurred to; the demurrer sustained, and on motion of the district attorney the affidavit was amended to read as follows: "That on or about the 29th day of March, 1932, in aforesaid county and state and justice district number 4 that C.E. O'Neal did then and there wilfully, unlawfully and feloniously take, steal and carry away approximately three thousand five hundred tomato plants of the value of seventeen dollars of the personal property of J.M. Hodges."
The appellant was, thereupon, put to trial, and the jury returned a verdict of guilty as charged and he was sentenced to pay a fine of one hundred dollars and serve ninety days in jail, from which conviction he appeals here.
At the conclusion of the evidence, the appellant moved for a peremptory instruction which was overruled and exception taken. He also requested a peremptory instruction in writing which was refused.
It will be seen from the foregoing affidavit that the appellant was charged with petit larceny under section 1010, Code of 1930, which is the statutory enactment of the common law. The proof in the case showed that the plants alleged to have been stolen were attached to and growing in the soil, and that they were severed therefrom by the person taking them from the soil of Hodges, the owner of the plants, as alleged in the affidavit.
Hodges, the owner of the plants, testified that they were not severed until they were taken.
The proof, therefore, makes a crime under section 1014, Code of 1930, which is a statutory larceny, but which was not larceny at common law.
Sections 1010 and 1014, Code of 1930, are separate statutes. They contain separate and distinct elements to constitute crime. Therefore, there was a failure to prove the offense charged in the affidavit; but, so far as the offense was proven, that is, the state's proven testimony, it showed a different offense. Consequently, the conviction in this case could not be pleaded as res adjudicata against a new trial under section 1014, Code of 1930.
Section 1190, Code of 1930, provides that: "Where a defendant is acquitted of a criminal charge upon trial on the ground of a variance between the indictment and proof, or upon exception to the form or substance of the indictment or record, he may be tried and convicted upon a subsequent indictment for the offense actually committed, notwithstanding such acquittal; and it shall be the duty of the court to order the accused into the custody of the proper officer."
It was, therefore, the duty of the court below to have granted the peremptory instruction requested, but to hold the accused under his bond for such further proceedings as the proper authorities should institute. The judgment, therefore, will be reversed, and the accused will be held on his bond to answer such further proceedings as, under section 1014, Code of 1930, the prosecuting authorities may see proper to issue.
Reversed and dismissed, and appellant held on his bond.