Clue v. State

• Decision Date: 25 February 1901
• Citation: Clue v. State, 78 Miss. 661, 29 So. 516 (Miss. 1901)
• Court: Mississippi Supreme Court
• Parties: JAMES CLUE v. STATE OF MISSISSIPPI

29 So. 516

78 Miss. 661

JAMES CLUE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 25, 1901

October 1900

FROM the circuit court of Tate county. HON. PERRIN H. LOWREY Judge.

Clue the appellant, was indicted, tried and convicted of arson and appealed to the supreme court. The opinion states the case.

Affirmed.

J. F. Dean, for appellant.

The indictment in this case charges two separate and distinct offenses in one count; first, the burning of the cotton house of R. B. Carter, and, second, the burning of the three bales of cotton of Carter and Lee. This case is not analagous to Avant v. State, 71 Miss. 78. In that case the court held the defendant was indicted for burning the house only, and not for the cotton; that the cotton was only charged to be in the cotton house which was burned. Here appellant is charged with burning the house, valued at $ 100, and the cotton of different ownership, valued at $ 120. The burning of the cotton was not a necessary averment to charge the burning of the house nor the burning of the house a necessary averment to charge the burning of the cotton. "It is bad practice to join two counts in one indictment charging distinct offenses." Teat v. State, 53 Miss. 439; Strawhern v. State, 37 Miss. 422; Hill v. State, 72 Miss. 527. The court should have sustained the motion of defendant to compel the district attorney to elect on which charge he would be tried. But if the court, in its discretion, permitted both charges to remain in the indictment, it should have confined the proof to one or the other, anti it committed an error when it allowed the state to prove, over defendant's objection, that the cotton was also burned with the house.

Monroe McClurg, attorney-general, for appellee.

There were not two separate and distinct offenses charged in the indictment, but if there had been, as the charge of arson in burning the house and the charge of malicious trespass in burning the cotton, both acts being charged to have been committed at the same time and by the same act, it would not have rendered the indictment bad. Wilkinson v. State, 77 Miss. 705. Nor is there any merit in counsel's contention that the state should have elected whether it would ask a verdict for the burning of the house or the burning of the cotton. Appellant was being tried for the burning of the house, as was held in Avant v. State, 71 Miss. 78.

OPINION

CALHOON, J.

The indictment charges that defendant "unlawfully, wilfully feloniously and maliciously did set fire to and burn a cotton house worth $ 100, the property then and there of R. B....