Brown v. State

Decision Date10 February 1913
Docket Number16,053
Citation103 Miss. 664,60 So. 727
CourtMississippi Supreme Court
PartiesBEN BROWN v. STATE

APPEAL from the circuit court of Claiborne county, HON. H. C MOUNGER, Judge.

Ben Brown was convicted of petty larceny and appeals.

The facts are fully stated in the opinion of the Court.

Reversed and remanded.

R. B Anderson, for appellant.

The affidavit charges that defendant entered the warehouse of H Frishman, in the nighttime, feloniously and burglariously with intent to steal, and is a good affidavit for the offense of burglary, but not a sufficient charge for larceny, and while I freely concede that the justice may have had the power to convict of petit larceny, if the evidence justified it, defendant had also the right to insist that the charge of larceny should advise him of the nature of the offense, which this affidavit assuredly did not do.

Section 1537 of Code 1906 merely gives a justice court the power to convict of a constituent misdemeanor, if no felony has been committed. Surely it does not mean that the justice can, on a charge (for instance) of embezzlement, convict of assault and battery without an affidavit charging the latter offense. In the instant case, there is no charge of larceny whatsoever, as the court will readily see.

And reasoning a step further, even if the justice of the peace would have authority to convict of a misdemeanor without its being charged in an affidavit, a defendant on appeal certainly should have the right to have the affidavit placed in proper and legal form, whereby he may be advised of the nature of the crime charged

In this case the defendant, in the circuit court, demurred to the affidavit, on the ground that it charged a felony and charged no misdemeanor whatsoever. Under such circumstances, larceny being the offense upon which the state sought to convict, did not the defendant have then the right to have a proper affidavit laid against him?

Again section 1537 is to be read in connection with section 1499 of the Code, the latter section declaring that a conviction may be had of an offense necessarily included in the one charged. It could not be contended that a charge of burglary necessarily includes larceny for the plain reason that the person committing burglary may be guilty of whatsoever offense he intends to commit and the court has recognized this rule of law by declaring an indictment bad, which failed to charge what offense the intruder intended to commit, when he "broke in" the building. Buchanan v. State, 75, Miss. 349.

I contend that, even though the justice had power to convict of any crime whatsoever on an affidavit of burglary, when his case was called in the circuit court, a trial de novo being there held, he had a right to file a demurrer to the affidavit and that if such affidavit were not in legal form and failed to advise him of the nature of the accusation, his demurrer should have been sustained, and that he should not have been tried on a charge which did not fully advise him of the crime charged. Here is a man charged, not only with burglary in the ordinary manner, but with entering in the nighttime, and convicted of stealing a barrel of flour. Suppose he were guilty of burglary and of having entered with intent to steal the goods of Frishman, under such a charge, is it the law that if the charge was changed so as to make it larceny, he lost his right to have a proper affidavit charging larceny? However guilty a man may be, is not he entitled to be tried according to the forms of law?

Appellant does not question the rule whereby burglary and larceny may be properly joined in an indictment; nor does he dispute with the state that a conviction thereunder will be referred to burglary, but contends that even though there be a correct affidavit or indictment for burglary, with a count for larceny, that to sustain a conviction for larceny alone, the larcenous offense must be charged correctly. The legislature certainly did not intend, by enacting section 1537, to give a justice of the peace greater powers than those possessed by a circuit court, and under an indictment, a jury in the latter court can only convict of the crime charged or one necessarily included. Scott v. State, 60 Miss. 268.

The case of Hastings v. State, 59 Miss. 541, which probably will be relied upon by the State, is unlike the case at bar in two particulars: 1st. The charge there was assault with intent to kill and there was a conviction of assault and battery, being an offense necessarily included in the indictment, or rather the affidavit. 2nd. The defendant did not demur or object to going to trial on the charge as laid. It would be preposterous to hold that a justice could convict of any offense except one necessarily in the affidavit.

Appellant asserts that had be been indicted by the grand jury in this case and if the indictment had been in the form of the affidavit herein, he could have been convicted only of burglary and not of larceny, because while it is proper to charge both offenses in the same indictment, a conviction of larceny can only be had where it is charged? Here we have the peculiar state of a case in which a citizen has been convicted of an offense, with which he has not been and is not charged. While larceny and burglary may be joined, there must be two counts in order to force one to trial on both offenses, unless he tamely submits. 22 Cyc. 467 and 468 and cases cited on page 268.

Frank Johnston, assistant attorney-general, for the state.

I will present to the court two propositions of law which are conclusive of the correctness of the judgment in this case rendered by the circuit court on the finding of the jury, which are as follows: 1. The affidavit charges, clearly and specifically, the burglary. It charges also, that he entered the warehouse of H. Frishman for the purpose of stealing, taking and carrying away goods, merchandise and personal property of the said Frishman . 2. The procedure was justified and proper under the provisions of section 1537 of the Code of 1906.

I submit, therefore, that under the first proposition, the burglary charged in the affidavit contains a charge of a contemplated and intended larceny in connection with the burglary, and that this was a sufficient charge against the defendant to apprise him of the nature of the offense which he was called upon to meet.

I concede, as an abstract proposition of law, that the crime of larceny is not necessarily involved in a charge of burglary but that does not reach the merits of this case, for it is very clear that the affidavit charges not only the burglary in express terms, but it also charges the defendant with the particular intent and purpose for which the burglary was attempted to be committed, viz., for the purpose of stealing the goods,...

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13 cases
  • State v. Shaw
    • United States
    • Mississippi Supreme Court
    • 12 de agosto de 2004
    ...1004 (Miss.1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Bogan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 So. 727 (1913); Bedell v. State, 50 Miss. 492 (1874). "[T]his section only authorize[s] convictions of inferior constituent offenses unle......
  • Hye v. State
    • United States
    • Mississippi Supreme Court
    • 5 de fevereiro de 2015
    ...(Miss.1976) ; Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954) ; Boggan v. State, 176 Miss. 655, 170 So. 282 (1936) ; Brown v. State, 103 Miss. 664, 60 So. 727 (1913) ; Bedell v. State, 50 Miss. 492 (1874). ¶ 8. A lesser offense is necessarily included in the greater offense if the element......
  • Terryhye v. State
    • United States
    • Mississippi Supreme Court
    • 5 de março de 2010
    ...(Miss. 1976); Gray v. State, 220 Miss. 220, 70 So. 2d 524 (1954); Boggan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 So. 727 (1913); Bedell v. State, 50 Miss. 492 (1874).¶8. A lesser offense is necessarily included in the greater offense if the elements of......
  • Hailey v. State
    • United States
    • Mississippi Supreme Court
    • 7 de dezembro de 1988
    ...1004 (Miss.1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Boggan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 So. 727 (1913); Bedell v. State, 50 Miss. 492 (1874). Stated differently, this Court holds this section only to authorize convictions of......
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