May 6, 1935. Suggestion of Error Overruled May 20, 1935.
1. INDICTMENT AND INFORMATION.
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, indictment containing name of county in caption and charging that offense was committed in "said county and State" held to sufficiently charge that cotton house was situated in county (Code 1930, section 817).
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, indictment charging that defendant "did wilfully, unlawfully, feloniously and with force and arms burglariously break and enter" held sufficient as against contention that there was no verb charging action with reference to burglary (Code 1930, section 817).
3. BURGLARY. Larceny.
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, proof showing that lock of house was broken, the door opened, and seed taken away without consent of owner, held to establish corpus delicti, without showing that accused did the breaking (Code 1930, section 817).
4. CRIMINAL LAW.
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, testimony of person who early in the morning following the theft bought the seed as to statements made showing that accused had assisted in breaking into house and taking away the seed held admissible (Code 1930, section 817).
5. BURGLARY. Larceny.
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, where seed stolen at such time was mixed with other seed, state was not required to prove how much was stolen at particular theft, since value of seed was not material (Code 1930, section 817).
6. CRIMINAL LAW.
In prosecution for burglary and larceny in breaking into and taking cotton seed from a cotton house, instruction referring to defendant and another breaking into house held not objectionable as depriving defendant of severance granted in trial, since it was proper to show who did the breaking, as each was guilty if both broke into building, or if one did it with assistance of the other (Code 1930, section 817).
APPEAL from circuit court of Jefferson Davis county.
HON. HARVEY McGEHEE, Judge.
Robert Yates was convicted of an offense, and he appeals. Affirmed.
Martin Beery, of Prentiss, for appellant.
It is essential to allege that house burglarized is in county where crime is laid.
At common law it was required that an indictment for burglary should not only state the county in which the offense was committed, but also state the particular parish, vill, hamlet or other place within the county in which the premises were located.
9 C.J., sec. 76, page 1042; State v. Reid, 20 Iowa 413; Bishop Crim. Procedure, sec. 135; Crane v. State, 157 Miss. 548, 128 So. 579; Moseley v. State, 92 Miss. 250, 45 So. 833; Franklin v. State, 167 Miss. 195, 148 So. 180.
The indictment does not charge larceny at all. It may be argued that it is not necessary that it do so, since the indictment allegedly charges an intent to steal. We say that this argument, if made, is erroneous, for the allegation of intent without alleging some overt act demonstrating intent renders the alleged burglary no more than a mere trespass, breaking and entering.
Roberts v. State, 55 Miss. 421.
We understand that indictments do not necessarily have to conform to strict rules of grammar, and we are not invoking any such strict doctrine, for we lay no claim to be any grammarian, but we do think that Section 26 of the Constitution requires indictments to conform to a fair degree of accurate statement of thought expressed in ordinary language.
Hall v. State, 91 Miss. 216, 44 So. 826.
The corpus delicti in burglary consists of two elements: (a) the breaking in; (b) the intention of committing a crime. Granting that the proof shows an unlawful breaking, it certainly does not show, aliunde the confession alleged, any intent to commit a crime and besides we think we have shown that no intent was properly charged in the indictment and the proof could not rise higher than the charge.
A defendant cannot be convicted on a confession alone.
Sykes v. State, 157 Miss. 600, 128 So. 753; Butler v. State, 129 Miss. 778, 93 So. 3; Williams v. State, 129 Miss. 469, 92 So. 584; Miller v. State, 129 Miss. 774, 93 So. 2; Bridges v. State, 86 Miss. 377.
There is no proof, aliunde the confession, that Yates was ever at the cottonhouse; and no identification of the seed was attempted to be proved.
Jackson v. State, 118 Miss. 602, 79 So. 809.
We submit that the second instruction was most harmful to appellant in that no warning was given us in the beginning of the trial that any connection with Ransom Jones would be submitted in an instruction to the jury so that we could have qualified the jury as to its state of mind toward Ransom Jones. The defendant did not use Ransom Jones and looked upon him as hostile and neither did the state use Jones.
Mitchell v. State, 156 So. 654.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The indictment, as will be seen by reference thereto, charges that the named parties "in said county and state" etc. "did" etc. "break and enter" a certain building (describing it as the "property of Carl Bridges"). If these parties broke into and entered this building, and the act was done in "said county and state," the building could have been nowhere else but in "said county and state" (Jefferson Davis County, Mississippi).
Proof aliunde the confession need only to go so far as to show that a real, rather than an imaginary crime has been committed.
Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Whittaker v. State, 169 Miss. 517; Perkins v. State, 160 Miss. 720, 135 So. 357; Garner v. State, 132 Miss. 815, 96 So. 743; Nichols v. State, 165 Miss. 114, 145 So. 903.
Criminal agency may be shown by the confession alone.
It is said that the confession was incompetent as evidence, because there was no warning to the defendant of his constitutional right to remain silent and that anything said by him might be used against him. This was not a judicial confession, and, therefore, no warning was necessary.
The first instruction correctly defines an accomplice and lays down a correct rule of law.
Dedeaux v. State, 125 Miss. 327, 87 So. 664; Stribling v. State, 124 Miss. 41, 86 So. 897; Anderson v. State, decided by this court in October, 1934, citing Cody v. State, 167 Miss. 150, 148 So. 627; Clark v. State, 113 Miss. 201, 74 So. 127; McCoy v. State, 91 Miss. 257, 44 So. 814; Harper v. State, 83 Miss. 402, 35 So. 572.
Argued orally by G.L. Martin and O.L. Berry, for appellant.
Robert Yates was indicted with Ransom Jones for burglary and larceny, and was tried and convicted and sentenced by the circuit court of Jefferson Davis county to serve seven years in the state penitentiary, from which Yates appeals to this court.
The proof of the state showed that a cotton house owned by Carl Bridges, in which was stored about one thousand two hundred pounds of cotton seed, was burglarized in December, 1934, and the seed was carried away and sold to a dealer at Magee, Miss. The value of the alleged stolen seed was placed at thirty dollars. It is shown by state witnesses that the cotton house or pen was locked with a staple lock, which had been broken, and the cotton seed, except for a very small portion, had been taken away. On learning of this burglary, an investigation began, and, the appellant having heard thereof, and also having heard some rumor of his connection therewith, went to a constable of the district and asked to be taken to jail, which was done by the constable and another. He requested them to go to see Carl Bridges, the owner of the seed house, and state to him that the appellant was the person who "had done him wrong," and that he (the appellant) was ready to pay off. There was no promise or threat or anything to show that the appellant was not voluntarily making this statement. On the contrary, the parties testified that it was voluntarily made. The statement was communicated to Bridges, and he went to the county jail, where the appellant made the same statement, and asked what it would take to satisfy Bridges, who stated that, so far as he was concerned, he would be satisfied with fifty dollars. The appellant made a statement as to how it occurred, saying that he and one Jones secured some other cotton seed, and that Jones broke the lock on Bridges' cotton house, and they took seed therefrom and loaded it into a truck owned by the appellant with such other seed, and carried it all to Magee, where early Saturday morning it was sold to a dealer at that point. This buyer testified that there was some one thousand six hundred odd pounds, and it was said to be worth forty-four dollars per ton, and this dealer paid Bridges for the seed.
There was a severance, and the appellant was tried alone.
The indictment, leaving off the formal parts, is as follows: "That Robert Yates and Ransom Jones, in said County and State, on or about the ____ day of January, A.D. 1935, did wilfully, unlawfully, feloniously, and with force and arms burglariously break and enter in the nighttime a certain building, to-wit; a cotton house, the property of Carl Bridges, with the felonious and burglarious intent of them, the said defendants, then and there to take, steal and carry away the personal property of the said Carl Bridges, to-wit; cotton seed, which said cotton seed was then and there of value, and was then and there kept and stored in said cotton house for the purpose of safe keeping and use, and then and there being found in said building, one thousand two hundred pounds of cotton seed of the value of thirty dollars, the personal property of the said Carl Bridges, wilfully, unlawfully, feloniously and burglariously did take, steal and carry away, contrary to Section 817 of the Mississippi Code of 1930 and . . . against the peace and dignity of the State of Mississippi."
The appellant contends that it was not charged in the indictment that the cotton house or pen was situated in Jefferson Davis county. In view of the above-quoted language, it is difficult to see how this contention could be made. The offense is charged to have been committed in "said county and State," and the caption names Jefferson Davis county. Unless the building was situated in said county, how could it be broken open in said county and seed taken therefrom? The indictment sufficiently charges the breaking and entering and other elements of the crime as having been committed in Jefferson Davis county; consequently this contention is without merit.
It is also contended that there is no verb charging action with reference to the burglary. The indictment uses this language, "did wilfully, unlawfully, feloniously and with force and arms burglariously break and enter," etc., and the appellant was convicted of burglary.
It is also contended that the corpus delicti was not proven independently of the confession. The proof showed that the lock was broken, the door opened, and the seed taken away without the consent of the owner. That constituted the corpus delicti. The appellant established his connection by his confession after the crime had been committed. The circumstances in evidence in this case show conclusively that a burglary was committed. It is not a part of the corpus delicti to show that the appellant did the breaking, but it was the criminal breaking without the consent of the owner, for the purpose of taking property stored in the building that constituted the corpus delicti. This was amply shown by the evidence.
It is next contended that the evidence of Benson Allen who bought the cotton seed was not admissible. We think this contention is utterly without merit. The seed was sold to him early in the morning following the breaking of the lock on the seed house, and the statements made showing that the appellant had assisted in breaking into the building and taking away the seed which had been sold to Benson certainly had weight in sustaining the conviction.
It is next contended that the proof is not sufficient to show the value of the seed taken. It does not matter, under our statute, whether the seed was worth above twenty-five dollars or below that sum, and the proof is that there were approximately one thousand two hundred pounds of seed worth forty-four dollars per ton. The fact that other seed were also stolen does not impose on the state the burden of proving how much was stolen at each theft.
It is complained that the instruction given for the state, among other things, stating that, "while said cotton seed were then and there so kept in said cotton house that the defendants, Robert Yates and Ransom Jones did then and there in Jefferson Davis county, State of Mississippi, wilfully, unlawfully, feloniously and with force and arms, burglariously break and enter in the nighttime, the cotton house aforesaid," deprived the appellant of his severance from Jones in the trial. It was proper and necessary to show who did the breaking, and that it was a joint enterprise, and, if both broke into the building, or if one did it with the assistance of the other, each is guilty. There was no showing of any evidence received against the appellant which would only be admissible against Jones, and there is no reversible error in the judgment of the court below. It will therefore be affirmed.