Bone v. State, 37513

• Decision Date: 31 December 1949
• Docket Number: No. 37513,37513
• Citation: 43 So.2d 571,207 Miss. 868
• Parties: BONE v. STATE.
• Court: Mississippi Supreme Court

Page 571

43 So.2d 571

207 Miss. 868

BONE v. STATE.

No. 37513.

Supreme Court of Mississippi, in Banc.

Dec. 31, 1949.

E. C. Barlow, Brookhaven, for appellant.

Greek L. Rice, Attorney General, Geo. H. Ethridge, Jackson, for appellee.

SMITH, Justice.

Appellant was convicted of burglarizing the place of business of Hogue Lumber-Supply Company, a corporation in Carthage, Leake County, Mississippi, on August 13, 1948. He was by the court sentenced to a term of seven years in the State Penitentiary. He appealed here, and assigns many errors, which may be condensed: (1) overruling the demurrer to the indictment; (2) admission of testimony of certain officers on the allegation it was illegally obtained without search warrants; (3) permitting the reception into evidence of a blanket and a flashlight found in appellant's car; (4) admission of evidence of the two women; (5) granting certain instructions to the State; (6) overruling appellant's motion to exclude the State's evidence and peremptorily instruct the jury to find appellant not guilty, and overruling his motion for a new trial.

The appellant did not testify, and offered no testimony by other witnesses at the trial.

The pertinent part of the indictment reads as follows: 'That Luther C. Bone in said county * * * did then and there willfully, feloniously and burglariously break and enter the storehouse of Hogue Lumber-Supply Company, a corporation organized and operating under the laws of the State of Mississippi, in which goods, merchandise, and other things of value were kept for sale, the property of said Hogue Lumber-Supply Company, with intent of him, the said Luther C. Bone then and there wilfully, feloniously and burglariously take, steal and carry away the sum of $10.00 in money, of the value of $10.00 in money, the property of said Hogue Lumber Supply Company, found and kept for use and sale in said storehouse. * * *'.

The indictment was drawn under Sec. 2043, Code 1942, as to which was said that the essentials to prove the crime of burglary are a breaking and entering the building and showing that it was done with intent to steal therein or to commit a felony. Gross v. State, 191 Miss. 383, 2 So.2d 818. Although we have declared that it is necessary also to allege the ownership of the building burglarized, James v. State, 77 Miss. 370, 26 So. 929, 78 Am.St.Rep. 527, we have further said that to prove occupancy satisfied this rule. Clinton v. State, 163 Miss. 435, 142 So. 17. So, in our opinion the indictment charges the crime of burglary, and the demurrer was properly overruled on this attack upon it.

The second ground of the demurrer, that the indictment does not 'specifically charge that the Hogue Lumber-Supply Company is a domestic corporation', is refuted by a mere inspection of the indictment.

Complaint was also made that 'The indictment does not charge or alleged what kind of money was taken, whether the said money was in green back bills, * * * silver dollars * * * or * * * good and lawful money of the United States of America. * * *' Since the charge is burglary, we do not agree that the indictment is demurrable on the ground stated. We are not, however, adjudicating one way or another the crime of larceny in the case at bar. By way of illustration, we recall the case where an indictment charged a breaking and entering of house with intent to stead therein, accused was not prejudiced by an amendment to conform to the proof, substituting for the charge that a vending machine of stipulated value was stolen that a slot machine containing money was stolen, since indictment was sufficient to support conviction for burglary without allegations as to the property actually stolen, and such allegations should be treated as surplusage. Hawkins v. State, 193 Miss. 586, 10 So.2d 678.

The demurrer to the indictment was properly overruled, and we refrain from further discussion of that aggignment of error.

This brings us to consideration of the question, whether or not the trial court erred in refusing a peremptory instruction to appellant, and overruling his motion for a new trial, based on such refusal and because, as contended by appellant, the verdict of the jury was against the overwhelming weight of the evidence. This requires a review of the evidence.

The victim of the burglary was a dealer in builders supplies in Carthage at the time of its occurrence, and was a Mississippi corporation. The crime was discovered at 6 o'clock on the morning of August 13, 1949, upon its place being opened for business. The books were thrown on the floor and a safe door was blown off the hinges; the back door of the store building which did not face any street, was standing ajar about two inches. It had been chiselled open and the night latch broken off. $6.38 was missing from the safe. The sheriff was notified, and after arrival at the store, called the highway patrol, giving a tag number.

The condition of the store safe was described by the sheriff as follows: 'The door was torn up and a piece of sheet metal and the packing put in there to resist heat, a lot of that was on the floor. Inside the door was a mesh wire like chicken wire and the ends of that were protruding out--where this inside piece of iron was screened on the back to hold this fire resistance, and the jagged ends stuck out of that door.' The significance of the 'packing', otherwise called 'filler', and of the 'jagged ends' of the wire, and their importance, will appear as the facts are further developed.

When the sheriff had testified: 'Mr. Hogue and I come up to where I had seen a strange car that night,' the appellant asked that the jury retire and 'this part of the evidence' be heard out of the jury's hearing, which was done. The objection then made involved assignment of error Nos. 2 and 3, based upon the fact that the sheriff had no search warrant, and hence what he learned from the car was inadmissible. The trial court, we think, properly overruled the objection. The sheriff never opened the doors of the car or trunk, or searched them, what he learned was entirely and exclusively by the eye. In making this ruling, the trial court said: 'I don't think this is a search of an automobile. The evidence shows that there had been a number of burglaries about the town of Carthage. The sheriff was informed that there was a strange automobile parked down here in 250 yards of the place where subsequently developed that the Hogue Lumber-Supply Company was burglarized. The evidence shows that the hood had been raised; that it was a two-tone Cadillac car. It was a strange automobile. They had never seen a car like that in this community. I think that in the discharge of an officer's duty that was sufficient for the officer to, at least, determine what the tag number was when he didn't have to do anything but look at it. He observed a peculiar blanket, as he described, in the automobile. It doesn't appear that he made any search. It was standing out there in the street. The eye doesn't trespass.' We quote the court's ruling, because it reveals sufficiently those things objectionable to appellant in the sheriff's testimony, and aids in the correct disposition, at least in part, of other assignments of errors as will later appear. As stated, we think the trial judge was correct. 'The eye doesn't trespass.' It is to be remembered that the offcer did not open the doors of the car or its trunk, or make a search of either. It has been specifically held by this Court that obtaining information by means of the eye, where no trespass has been committed in aid thereof does not constitute unlawful search. Constitution 1890, Section 23; Goodman v. State, 158 Miss. 269, 130 So. 285. That is still the law in Mississippi, and hence the evidence of the sheriff, which, as will be set out in more detail post, was admissible even though he had no search warrant. The incidents in connection with this car, to which reference is at this time made, occurred the night of the burglary.

Upon the return of the jury, the sheriff testified before it, in substance, as follows here. He saw a strange car after 2:00 a. m. the night of the burglary on Jordan Street in Carthage, where there was only one house facing the street, from which the car was parked about seventy-five yards, and approximately two hundred and fifty yards from Hogue Lumber-Supply Company's store, which was burglarized. The car was a two-toned Cadillac, 1942 model, Tag No. 340-118. He, in company with Town Marshall Brooks, had seen the same car there, but on that visit he merely noted the tag number was from Jones County, and left to make a call, but, being suspicious, later returned alone and made the observations detailed in the opening part of this paragraph. He also stated that he saw that the seat covers were badly worn and torn, and on one of the seats there was a fringed blanket, of a 'greenish' color, with big white checks. He did not see the car any more that night, August 13, 1948, the date of the burglary.

However, he did again see it about 3:30 p. m. of the afternoon of that same day in Hattiesburg, in the garage of the Ford Motor Company, where it had been placed by the police. It bore the same tag Number, 340-118 and had the same blanket in it. It was the same car. He also saw appellant in Hattiesburg in jail, who claimed the car had never left Hattiesburg, nor had he, the day and night of burglary. This was a significant circumstance itself, since the falsity of appellant's claim was so abundantly proven. The tag number had been issued to one, Steadman, but Bone had it because of a debt due him by Steadman, having taken it as payment. Bone further stated the car was at his place of busines, 'The Supper Club', near Hattiesburg all that night. On cross-examination, the sheriff conceded he did not see appellant at Carthage and had no direct personal knowledge of who actually committed the burglary. However, he said he did see tracks...