Opinion
No. 40417.
April 15, 1957.
1. Criminal law — burglary — Supreme Court not to consider on appeal question that verdict was not supported by evidence in absence of motion for new trial.
Where defendant had not raised question that verdict of guilty of burglary was not supported by the evidence by motion for new trial, Supreme Court would not consider on appeal.
2. Appeal — Supreme Court not to put Trial Court in error on matter upon which it was not requested to pass upon.
Supreme Court cannot put Trial Court in error as to a matter upon which it was not requested to pass.
3. Burglary — evidence — conviction sustained.
Evidence sustained conviction of burglary.
4. Criminal law — instructions — failure to give instruction qualifying reasonable doubt instructions to the effect that evidence must exclude every reasonable hypothesis consistent with innocence — not error — where accused's guilt or innocence did not rest entirely on circumstantial evidence.
Where guilt or innocence did not rest entirely upon circumstantial evidence and defendant had been granted nine instructions by which jurors were informed that in order to convict, jurors need only believe defendant guilty beyond every reasonable doubt, and Trial Judge had not been requested to grant instruction containing qualification that in order for guilt to appear beyond every reasonable doubt, evidence had to exclude every reasonable hypothesis consistent with innocence, failure to give such instruction was not error.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Rankin County; W.E. McINTYRE, Judge.
L. Percy Quinn, Noel W. Buckley, Jackson, for appellant.
I. The appellant's defense was that he was drunk to the extent that he could not entertain a criminal intent to commit burglary and larceny. There was absolutely no evidence that the appellant was not drunk and that he was capable of entertaining a criminal intent. In fact all of the evidence on behalf of the State of Mississippi seems to corroborate the appellant's contention.
II. An accused may show as a defense that at the time when he committed the acts which otherwise would constitute larceny, he was too drunk to have had such an intent.
III. The burden was upon the State to prove beyond a reasonable doubt that the defendant committed the act and that he had the felonious intent at the time to commit larceny therein.
IV. The Trial Court should have directed the verdict for the defendant at the close of the State's testimony or should have given a peremptory instruction at the time the defendant rested. Our contention is based on the fact that all of the evidence shows positively that the defendant was drunk and in such a condition that he was not capable of entertaining a criminal intent; and in this condition, the most that he could have been guilty of was a trespass.
Collation of authorities: Bullock v. State, 195 Miss. 340, 15 So.2d 285; Edwards v. State, 178 Miss. 696, 174 So. 57; Harvey v. State, 199 Miss. 39, 23 So.2d 920; Tate v. State, 193 Miss. 386, 9 So.2d 788; Wade v. State, 175 Miss. 434, 167 So. 617.
V. The Trial Court erred in not giving an instruction on circumstantial evidence or in not giving a peremptory instruction for the defendant for the reason that the evidence, as a matter of law, did not exclude every other reasonable hypothesis consistent with the innocence of the appellant. Hardy v. State, 177 Miss. 727, 172 So. 131; Warren v. State, 166 Miss. 284, 146 So. 449.
John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The evidence was sufficient to sustain a conviction. Bone v. State, 207 Miss. 868, 43 So.2d 571.
II. It was not essential in the instant case that the State prove that the automobile which appellant wrecked was the same automobile which was taken out of Myers' store house. Such proof would only have been required if appellant had been convicted of larceny. The indictment under which appellant was tried in the instant case charged him with burglary and larceny. Edwards v. State, 178 Miss. 696, 174 So. 57; Harvey v. State, 199 Miss. 39, 23 So.2d 920; Wade v. State, 175 Miss. 434, 167 So. 617.
III. Where the indictment charges burglary and larceny, a general verdict of "guilty as charged" is one of guilty of burglary alone. Dees v. State, 89 Miss. 754, 42 So. 605.
IV. The testimony does not describe a man who is too drunk to know where he is or what he is doing. And the jury was surely justified in believing the testimony of the above witnesses rather than the alibi of appellant.
Poole was convicted of burglary and sentenced to serve a term of five years in the state penitentiary.
(Hn 1) He contends on this appeal that the verdict was against the great weight of the evidence, and that, therefore, the case should be reversed and remanded. (Hn 2) This question was not raised by motion for a new trial, and in the absence of such motion the contention will not be considered by this Court. (Hn 3) We cannot put the trial court in error as to a matter upon which it was not requested to pass. Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Saenger Theatres, Inc. v. Faulk, 193 So. 910 (Miss.); Clark v. State, 206 Miss. 701, 40 So.2d 591; Gilmer v. Gunter, 46 So.2d 447 (Miss.). We might add, however, that we have carefully reviewed the testimony, and it is amply sufficient to sustain the verdict.
(Hn 4) Poole says that the trial court committed error in that no instruction granted him contained the necessary qualification that in order for his guilt to appear beyond every reasonable doubt the evidence had to exclude every reasonable hypothesis consistent with his innocence. The contention is not well taken for these reasons: First, the trial judge was not requested to grant such an instruction; Second, the guilt or innocence of Poole did not rest entirely upon circumstantial evidence; and, Third, Poole requested and was granted nine instructions by which the jurors were told that in order to convict him the jurors need only believe him guilty beyond every reasonable doubt from the evidence, no instruction containing the qualification that the evidence had to exclude every other reasonable hypothesis. An accused cannot complain of the granting of instructions which are in harmony with those requested by and granted to him. Wilson v. Zook, 69 Miss. 694, 13 So. 351; National Gas Company v. Johnson, 219 Miss. 1, 67 So.2d 865.
We find no error in the other contentions made on this appeal.
Affirmed.
Hall, Holmes, Ethridge and Gillespie, JJ., concur.