Brown v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WHITFIELD, J.
• Citation: Brown v. State, 81 Miss. 143, 33 So. 170 (Miss. 1903)
• Decision Date: 05 January 1903
• Parties: DUDLEY BROWN v. STATE OF MISSISSIPPI

33 So. 170

81 Miss. 143

DUDLEY BROWN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 5, 1903

October 1902

FROM the circuit court of Pike county HON. JEFF TRULY, Judge.

Brown the appellant, was indicted, tried, and convicted of burglary, and appealed to the supreme court. The indictment charges that appellant did break and enter, etc., the storehouse of Aaronson, etc. The proof showed that the ownership of the freehold of the property entered was in one Moyse, but that Aaronson had rented the house for a storehouse, and used and occupied it as such at the time the goods were stolen therefrom. The court refused the following instruction asked for defendant: "If the jury believe in this case beyond all reasonable doubt that the storehouse alleged to have been broken into was not the property of Aaronson, as alleged in said indictment, you must find the defendant not guilty."

The district attorney made the following remarks to the jury, to which the defendant's counsel objected: "If you are going to do like the juries did last week, turn everybody loose, regardless of evidence, why I might just as well close up shop. If you are going to believe the defendant, this entire court is a farce; he never denied his guilt until he employed counsel." Defendant's motion for a new trial was overruled.

Affirmed.

Ratcliff & Wall, for appellant.

This cause should be reversed because the trial court refused the instruction asked for by defendant, based upon the fact that the indictment averred the ownership of the building alleged to have been burglarized to have been in Aaronson. The proof shows said property to be that of Moyse. This variance is fatal. James v. State, 77 Miss. 370.

This case should also be reversed and remanded because of the manifest unfairness and illegitimate argument of the district attorney in his final argument to the jury, to which the proper and legal exception was taken at the proper time. Cheat-ham v. State, 67 Miss. 335; Cartwright v. State, , 71 Miss, 82; Cavanah v. State., 56 Miss. 299; Martin v. State, 63 Miss. 505; Pullman Co. v. Lawrence, 74 Miss, 782; Hemingway v. State, 68 Miss. 371; Wood v. State, 64 Miss. 761; Lamar v. State, 65 Miss. 93.

William Williams, assistant attorney-general, for appellee.

The burglarized store is shown by the whole testimony to be that of Aaronson. The goods taken therefrom were the property of Aaronson. He had charge of, control over, and was doing business in the store burglarized. To all intents and purposes the storehouse, at the time the burglary was committed, belonged to Aaronson. It matters not whether the fee simple title was in him or Moyse.

Argued orally by Clem V. Ratcliff, for appellant, and by William Williams, assistant attorney-general, for appellee.

OPINION

WHITFIELD, J.

The ownership was properly laid in Aaronson. He had rented the house as a storehouse, occupied it, and used it as such, and the goods were stolen therefrom. In Webb v. State, 52 Ala. 422, the rule is thus correctly stated: "The authorities collected in the best text-books on criminal procedure justify us in declaring that, where there is a right to the use and occupation of the building in one who is actually occupying, distinct from the ownership of the freehold or the reversionary right on the expiration of the term of the occupier, the ownership is properly laid in the occupier. 2 Bish. Cr. Proc., sec. 109; 1 Russ. Crimes 806-820; 2 Whart. Cr. Law, 1577-1591." Rex v. Rees, 7 Car. & P. 568; 32 E.C.L. 633, is a striking case. A gardener lived in a house of his master, quite separate from the dwelling house of his master, and the gardener had the entire control of the house. He lived in it, slept in it, and kept the key. Held, that on an indictment for burglary the...