Adams v. State
| Decision Date | 03 December 1928 |
| Docket Number | 27514 |
| Citation | 152 Miss. 220,119 So. 189 |
| Court | Mississippi Supreme Court |
| Parties | ADAMS et al. v. STATE. [*] |
APPEAL from circuit court of Scott county, HON. EARL S. RICHARDSON Special Judge.
Frank Adams and another were convicted of willful, unlawful, and malicious trespass, and they appeal. Reversed and remanded.
Reversed and remanded.
W. T Weir, for appellant.
First we submit that the affidavit and proof were at variance. We respectfully submit that the charge at best was imperfectly drawn, giving the most charitable view of it that can be consistent with the law. It appears in the body and is so stated therein that A. J. Patrick makes affidavit, etc., and it nowhere is shown that he ever signed the affidavit. It was signed by M. A. Walters.
It further charges that the defendants committed trespass on the property of Scott county. And so far as the record shows was never in fact amended to show that this was the property of the Steele school district. In fact the learned district attorney did not ask that it be amended to say the Steele school district but to say "the property of the school district" without specifying which school district.
The peremptory instruction for and on the part of both defendants ought to have been sustained for the reason that there was no evidence showing that the property was the property of Scott county, and for the further reason that there was no evidence any where to show the least particle of malice toward the county of Scott or any of its citizens or any malice towards the Steele public school district or anyone else. See Barnett v. State, 124 Miss. 884.
Rufus Creekmore, Assistant Attorney-General, for the state.
The first point argued by counsel in his brief is that the affidavit in this case is defective in that in the body thereof it appears that a certain A. J. Patrick made the affidavit, while it was signed by a certain M. A. Walters. Although the affidavit is irregular in this respect, it was not an invalid affidavit. The rule is well settled in this state that it is not even necessary that an affidavit be signed so long as it is sworn to by the affiant before the proper officer. Coppock v. Smith, 54 Miss. 670; Husbands v. State, 105 Miss. 548, 62 So. 418; Winters v. State, 142 Miss. 71, 107 So. 281.
The court will also observe that the defendant did not raise this point in the court below, either by demurrer, or by motion to quash. It is clear that had the point been raised, the proper amendment could have been made and this defect cured. Not having made his objection at the proper time, this defect cannot now be availed of. Hemingway's Code 1927, section 1229, Code of 1906, section 1413.
Counsel next argue that there was a variance between the affidavit in this case and the proof in that the affidavit charged the property to belong to Scott county, while the proof showed it to be the property of the Steele school district. Counsel say that the motion of the district attorney to amend and the action of the court granting the same is of no effect, because the affidavit was not, in fact amended. The state does not desire to take issue with counsel on this proposition but, conceding his argument in that respect to be correct still there is no variance shown between the allegations in the indictment and the proof. The testimony of Mr. E. B. Guthrie, the superintendent of the Steele school shows that the Steele school is a rural school supported by the county levy for school purposes. The district was created under the law with reference to the creation of rural public schools by the county school board, and the tax for the support and maintenance of the school is levied on the entire property in the county, as is provided by the school code. There can be no question but that this schoolhouse was the property of Scott county, and that there was no variance in this respect. See, also, McKinnon v. Gowan Brothers, 127 Miss. 545, 90 So. 243, which holds that land donated to trustees for a county agricultural school is donated to and belongs to the county.
Counsel next argues that the evidence in this case was insufficient to sustain the verdict of guilty, because the state has failed to prove that the trespass was willful or malicious. In support of this argument, counsel cites Barnett v. State, 124 Miss. 884, 87 So. 421, which case held that a person who was tried under the statute here in question could not be convicted where the alleged trespass was by cutting trees on land which had been in his possession for thirty-seven years and who claimed to own the land. The court there held that the evidence negatived any willful or malicious intent.
In the case at bar, the testimony shows that the defendants willfully trespassed on property not their own, but which was the property of Scott county, and while thereon destroyed a part of the property. A person's intent can be determined only from his actions, and if the willful going upon this property by the defendant and the destroying and breaking of the windows in the building does not constitute willful or...
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...N.C. 103, 40 S.E.2d 699; State v. Harris, 195 N.C. 306, 141 S.E. 883; >tate v. Harbert, 185 N.C. 760, 118 S.E. 6. See also Adams v. State, 152 Miss. 220, 119 So. 189, Brown v. State, 16 Ga.App. 268, 85 S.E. 262; 87 C.J.S. Trespass § 161, p. 1113, 42 C.J.S. Indictments and Informations § 143......
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...held that under the act 'it is necessary to both allege and prove the ownership of the property trespassed upon.' Adams v. State, 1928, 152 Miss. 220, 225, 119 So. 189. It is undisputed that defendants willfully entered upon the property in question and cut trees upon it. The questions here......