Clinton v. State

• Citation: 163 Miss. 435,142 So. 17
• Decision Date: 30 May 1932
• Docket Number: 29904
• Court: Mississippi Supreme Court
• Parties: CLINTON v. STATE

142 So. 17

163 Miss. 435

CLINTON v. STATE

No. 29904

Supreme Court of Mississippi

May 30, 1932

(Division A.)

1. INDICTMENT AND INFORMATION.

Defendant failing to call court's attention thereto waived demurrer to indictment.

2 BURGLARY. Indictment and information.

Allegations in burglary indictment regarding ownership of property burglarized constitute surplusage, occupant at time of burglary being owner so far as burglary is concerned.

3 BURGLARY.

In burglary indictment, allegation that burglarized house was corncrib, property of county wherein crime was laid, leased to named person, Held to sufficiently allege ownership and describe premises.

4. INDICTMENT AND INFORMATION. j It is essential to allege that house burglarized is in county where crime is laid.

Division A

APPEAL from circuit court of Forrest county.

HON. W J. PACK, Judge.

Eugene Clinton was convicted of burglary, and he appeals. Affirmed.

Affirmed.

Currie & Currie, of Hattiesburg, for appellant.

The demurrer should have been sustained. The allegations in the indictment of the property of Forrest county, of the state of Mississippi was material and was not mere surplusage, and it was necessary for the state to prove that the title was in Forrest County, Mississippi.

In a prosecution for burglary it is necessary for the indictment to describe with reasonable certainty the house alleged to have been burglarized, and to allege ownership in some person other than the alleged burglar, because a man cannot commit burglary upon his own house. It is necessary in the prosecution of any case of burglary to prove what house was burglarized and who owned or occupied it.

The title of the land was alleged to be in Forrest county, one of the political subdivisions of the state of Mississippi, and if Forrest county owned the land its title was necessarily evidenced in and manifested by written documents containing a description of the land and these records or writing constituted the primary and only evidence of the title of Forrest County to the land.

The appellant was clearly entitled to a peremptory instruction because of the failure of the state to prove the description and title of the land.

This indictment was drawn under section 817, Mississippi Code of 1930 Annotated, and it was incumbent upon the state, to prove the title as laid in the indictment.

State v. Ellis, 102 Miss. 541, 59 So. 841; James v. State, 77 Miss. 370, 26 So. 929.

The indictment in this case does not allege that F. K. Malone was in the actual possession of the building. It merely alleges "and leased by F. K. Malone," which is far from alleging actual possession and occupancy.

Scott v. State, 62 Miss. 781.

Where the names of several joint owners are alleged, they must be precisely proved as laid though the statute requires but one name to be alleged.

Doan v. State, 26 Ind. 495.

The words "Forrest county, Mississippi" when used to describe the ownership so as to show where the title was were not mere surplusage.

Levy v. State, 42 So. 875.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

Having proceeded to judgment in this case without calling up this demurrer for disposition, has had the effect of waiving this demurrer.

Home Insurance Company v. Bank, 71 Miss. 608, 15 So. 932.

Possession is enough as against burglars.

Wharton. Cr. Law (10 Ed.), sec. 804.

And this is true even if the possession be wrongful possession.

1 McClain Cr. Law, sec. 508; Lewis v. State, 85 Miss. 35.

In this indictment the words "Forrest county, State of Mississippi" when used to describe ownership so as to show where the title was were mere surplusage.

OPINION

McGowen, J.

Eugene Clinton, the appellant, was convicted of burglary and sentenced to serve a term of seven years in the state penitentiary.

A demurrer was interposed to the indictment, but, apparently, it was not presented to the court, as no order was entered thereon.

It was the duty of the appellant to call the attention of the court to his demurrer and have same disposed of, otherwise he must be held to have waived the demurrer.

However, in the objections to the evidence, the only point presented here worthy of consideration is in the nature of a contention that there is a variance between the evidence and the indictment, and that the indictment insufficiently alleges the ownership of the house shown to have been burglarized, and insufficiently describes the premises. The part of the indictment which is subject to this criticism is, leaving off the formal parts, in this language: "The house commonly called a corncrib, of the property of Forrest county, of the state of Mississippi, and leased by F. K. Malone, feloniously and burglariously," etc.

When the state began to introduce evidence, it offered a witness, Vanderford, a supervisor, who testified that Malone was in occupancy of the corncrib in question on property belonging to the county described by governmental subdivisions at the time of the burglary, in virtue of a lease from the county.

The objection was interposed throughout the record that the indictment alleged that the corncrib in question was owned by Forrest county, and that the words, "leased by F. K Malone," constituted surplusage, and that it was necessary, in an indictment, to accurately describe the property, and that the deraignment of Forrest county's title was a necessary part of the proof, citing, in support thereof, James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. Rep. 527...