Carothers v. State

• Citation: 83 So. 809,121 Miss. 762
• Decision Date: 08 March 1920
• Docket Number: 21072
• Court: United States State Supreme Court of Mississippi
• Parties: CAROTHERS v. STATE

83 So. 809

121 Miss. 762

CAROTHERS v. STATE

No. 21072

Supreme Court of Mississippi

March 8, 1920

March 1920

1. BURGLARY. Not necessary for indictment that intent to commit larceny was burglarious.

An indictment for burglary charging that defendant did unlawfully, willfully and feloniously and burglariously break and enter a certain dwelling was sufficient it was not necessary to further use the word "burglarious" in charging an intent to commit larceny; the word having reference to the manner of entry and characterizing the breaking and entry as having been done in the manner of a burglar.

2. CRIMINAL LAW. Confessions made to an officer without caution or warning admissible in evidence.

Confession of an accused made to an officer having him in custody were not incompetent because the officer failed to caution the prisoner that his statement might be used against him, there being no statute requiring such caution or warning.

3. CRIMINAL LAW. Erroneous statement of law in argument not prejudicial not included in instructions.

A statement by a prosecuting attorney in his closing argument in a prosecution for burglary that "possession of recent stolen goods is prima-facie evidence of guilt, and that I could obtain an instruction from the court to that effect," although a misstatement of the law, was not prejudicial to the accused; the error complained of not appearing in any instruction of the court.

APPEAL from the circuit court of LaFayette county, HON. C. LEE CRUM Judge.

McKinly Carothers was convicted of burglary and appeals.

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

Affirmed.

L. C Andrews, for appellant.

The defendant was never warned that what he should say would be used against him. The indictment is bad and, therefore, fatally defective in not charging that the intent to steal, take and carry away certain personal property was a burglarious one.

In Draughn v. State, 76 Miss. 574, 25 So. 153, the court said: "An indictment is bad which only charges the defendant with breaking and entering a dwelling house with intent to commit larceny therein. It should allege the breaking and entry to have been with intent to burglariously and feloniously take and carry away property."

We consider this case conclusive as to the point here raised. We think that in order to give the confessions introduced in evidence here that degree of fairness and freeness that the law exacts to make them voluntary, that under the circumstances disclosed by this record, the defendant should have been warned that what he was about to say would be used against him on the trial of his case.

From the above premises, the conclusion is irresistible that the indictment contains no valid charge against the defendant, and that the verdict is contrary to the law and the evidence, and that the confessions are inadmissible.

N. T. Currie, for appellee.

The indictment is based upon section 1068 of the Annotated Code of Mississippi 1906, and reads as follows: "Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary and be imprisoned in the penitentiary not more than three years."

This statute modifies the common law in this, in that under the common law one of the essential elements of the crime of burglary is the intent to commit a felony. It is perceived from the mere reading of this statute that the breaking and entering of a dwelling house in the day or nighttime need not necessarily be with intent to commit a felony but is burglary with intent to commit "a crime" and we take it that these words mean any sort of a crime.

The statute having made this change, it was not necessary as a matter of law, in the case at bar that the indictment charge that the house was broken and entered by the appellant with the intent at the time of committing a felony, and the indictment charging that he unlawfully and feloniously and burglariously broke and entered the house in the nighttime with intent to steal, sufficiently charges the offense of burglary under the statute. The indictment, therefore, was not demurrable.

In his fourth assignment of errors, as originally filed the appellant stated there was an error on the part of the trial court in the admitting, over objection of the appellant, evidence of alleged confessions made by himself to the witnesses, Reagan and Whitehead. He contends that it was not shown that his confessions were voluntary and that it affirmatively appears upon the face of the record that he was under arrest, in the custody of the deputy sheriff, and probably in jail at the time of the making of the alleged confessions. We submit that there is no fact or circumstance in the record which shows, or tends to show, as a matter of law, that the confessions introduced were not voluntary. On the contrary, the testimony of both Reagan and Whitehead the deputy sheriff, is to the effect that there was no threat of violence, no persuasion, no enticing, no giving of reward, no promise of reward, and no hope of pardon or clemency or leniency of any sort offered or held out to the appellant that he was simply asked about breaking and entering into the house and what he knew about it and what goods, if any, were stolen and carried away, etc.

In answer to the contention that the confession is not admissible because the appellant was, at the time, under arrest and, perhaps, in jail, we cite paragraph 129 at page 249 of Underhill on Criminal Evidence, which reads as follows: "The mere fact that the defendant was under arrest, or was in the charge of an armed police officer when he made his confession or was handcuffed and chained or tied, if he is not tied in such a manner as to produce pain or extort a confession, or in prison, will not make a confession involuntary."

The next point of objection they make to the confession is that the appellant was not properly warned or cautioned before making the confession. In reply to that contention and objection, we cite paragraph 130 at page 251 of Underhill on Criminal Evidence, which reads as follows: "Aside from the statute, the fact that a confession, which is otherwise admissible, is made without the accused having been cautioned by the court or by the person to whom the confession is made that what he says may be used against him, does not render it incompetent."

There is no statute in the state of Mississippi requiring the accused, who is about to make a confession, to be cautioned or warned, before he proceeds to make the same, that it may or will be used against him.

We believe the only other assignment of error is that contained in the additional or supplemental assignment of errors and is to the effect that the district attorney in making his closing argument, made use of the following language: "Possession of recent stolen property is prima-facie evidence of guilt and that I could obtain an instruction from the court to that effect."

We submit that there is nothing in these remarks to warrant a reversal of this case; indeed, that it was a mere argument and did not prejudice the appellant. The state did not ask for any such instruction, and no such instruction was granted by the court, and there can, therefore, be no legal error based upon these remarks. The court in granting the instructions defined the...