Cooksey v. State

• Citation: 175 Miss. 82,166 So. 388
• Decision Date: 09 March 1936
• Docket Number: 31920
• Court: United States State Supreme Court of Mississippi
• Parties: COOKSEY v. STATE

166 So. 388

175 Miss. 82

COOKSEY v. STATE

No. 31920

Supreme Court of Mississippi

March 9, 1936

Division B

APPEAL from the circuit court of Warren county HON. E. L. BRIEN Judge.

McKinley Cooksey was convicted of burglary, and be appeals. Reversed and remanded.

Reversed and remanded.

Canizaro & Canizaro, of Vicksburg, for appellant

The proof shows that M. F. Farris, the owner of the building burglarized as charged in the indictment, died on April 15 1935, ten days before the burglary and nearly three months before the indictment was returned.

Clearly there is a variance when the indictment charges ownership of the property burglarized in M. F. Farris, and the proof shows that M. F. Farris was not the owner of the store building burglarized.

Indictment charging burglary must allege ownership of building burglarized, and such ownership must be proved as alleged.

Nichols v. State, 164 Miss. 158, 144 So. 374.

A material variance between the allegation and the proof with respect to the ownership of the premises is fatal and entitles defendant to an acquittal.

Wright v. State, 130 Miss. 603, 94 So. 716; 9 C. J. 1061, sec. 114.

In burglary prosecution, admitting evidence of defendant's admissions regarding committing other crimes, held prejudicial error.

McLin v. State, 116 So. 533; Baygents v. State, 144 Miss. 442, 110 So. 114; Floyd v State, 166 Miss. 16, 148 So. 226; Slaydon v. State, 102 Miss. 112; Collier v. State, 106 Miss. 613; Hurd v. State, 102 So. 293, 137 Miss. 178; 16 C. J. 583-586, sec. 1132; Lawson v. State, 161 Miss. 719, 138 So. 361.

The property alleged to have been stolen by the defendant was not sufficiently identified, and, in fact, the same was not identified at all, and the evidence is failing in every respect to show that the articles introduced in evidence were taken from the store claimed to be burglarized.

Jackson v. State, 118 Miss. 602, 79 So. 809.

To sustain a conviction the property must be sufficiently identified as that stolen at the time of the burglary.

9 C. J. 1081, sec. 141; Green v. State, 31 S.W. 386.

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

Variance as to the ownership of property burglarized is an amendable defect and cannot be availed of after verdict.

Foster v. State, 52 Miss. 695; Collier v. State, 154 Miss. 446, 122 So. 538; Osser v. State, 165 Miss. 680, 145 So. 754; Knight v. State, 64 Miss. 802, 2 So. 252; Davis v. State, 150 Miss. 797, 117 So. 116.

It is said that the district attorney overstepped the bounds in his cross-examination of the defendant with reference to former convictions. Considering what is shown in the light of the decisions of this court in Roney v. State, 167 Miss. 532, 142 So. 475, and Baygents v. State, 154 Miss. 36, 122 So. 187, the state submits that it should not work a reversal of the conviction, even if it should be held erroneous.

The goods found, according to the testimony of F. M. Farris, were the same in kind, quantity and stamp as the goods stolen. This, taken in connection with the testimony which shows that, shortly after the burglary the defendant was disposing of these goods at "cut-rate" prices, and giving false explanations as to his possession, seems sufficient to distinguish this case from Jackson v. State, 118 Miss. 602, 79 So. 809, relied on by appellant here, and such evidence is, we submit, sufficient to require submission to the jury. Under such circumstances he would not have been entitled to a peremptory instruction.

The fact that defendant was not represented by counsel does not make the rules any different so far as this court is concerned in reviewing this conviction.

Dugan v. State, 151 Miss. 781, 119 So. 298.

OPINION

Ethridge, P. J.

The appellant was indicted and convicted in the circuit. court of Warren county of burglary, sentenced to serve a term of four years in the State Penitentiary, and from this conviction be appeals here.

The indictment which alleged that the burglary occurred on July 2, 1935, and the proof shows that it occurred on April 24th or the morning of April 25th, also alleged that appellant burglarized the store building of one M. F. Farris, taking away various items of merchandise thus charging ownership of the building in M. F. Farris.

It appeared from proof on the part of the state that said M. F. Farris died on April 15, 1935, nine or ten days prior to the alleged burglary, and there was no other proof of ownership or possession of the building burglarized as laid in the indictment.

The appellant was not represented by counsel at the trial, but testified in his own behalf, and denied any connection with said burglary. On cross-examination, over his objection, he was asked as to former convictions of crime, and, among other things, answered as follows:

"Q. Have you ever been convicted of any crime before? A. Breaking in a store.

"Q. At any time have you ever served on Ballground? A. Yes sir.

"Q. What for? A. Different things.

"Q. Let's have a few of them. How many times have you been there? A. What has that to do with this case ?

"Q. The judge will tell you about that.

"By the court: You have to answer the question. A. Yes sir.

"Q. What were you sent there for? A. Robbery.

"Q. How many times have you been sent there for robbery? A. One. . . .

"Q. And you were convicted once of robbery and another time for stealing automobile tires? A. Yes sir, and a lot of things.

"By the court: Do you want to say anything else? A. I want to know if they are trying me for something I have been convicted for?

"By the court: That is a competent question, to ask a witness whether or not be has been convicted. That is a competent question. That goes to the question of veracity and truth.

"By the defendant: You mean they find me guilty on my record ?

"By the court: No, but it is in the province of the jury to consider that in bringing in a verdict. That is the reason it is competent. A. All I can say is that I was framed in this case. I am not guilty of it, and that is all."

An indictment charging burglary must allege ownership of the building burglarized, and such ownership must be proved as alleged. Wright v. State, 130 Miss. 603, 94 So. 716; Nichols v. State, 164 Miss. 158, 144 So. 374; and Davis v. State, 150 Miss. 797, 117 So. 116, in which it was held that while an indictment might be amended, it could only be done by spreading the amendment upon the minutes of the court. In that case the defendant was accused of killing "Ernest Jones" by the indictment, and the proof showed that "Man J." was killed instead of Ernest Jones, and, among other things, the court there said that. "In order to preserve the identity of the offense, it is necessary and proper to amend the indictment so as to charge that 'Man' Jones was killed instead of 'Ernest' Jones; and the amendment to the indictment was permissible under the stature quoted, supra as the offense is identical. However, section 1330, Hemingway's 1927 Code (section 1509, Code of 1906) is in the following language: 'The order of the court for such amendment shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding-were actually changed to conform to the...