Crane v. State

• Citation: 128 So. 579,157 Miss. 548
• Decision Date: 02 June 1930
• Docket Number: 28724
• Court: Mississippi Supreme Court
• Parties: CRANE v. STATE

128 So. 579

157 Miss. 548

CRANE v. STATE

No. 28724

Supreme Court of Mississippi, Division B

June 2, 1930

(Division B.)

1. CRIMINAL LAW. Indictment and information. Amendment to indictment returned by grand jury must be entered on minutes of court; Supreme Court will not look to statements in stenographer's notes to determine whether amendment to indictment of grand jury has been made; amendment to indictment of grand jury authorized by court, but not entered on minutes, leaves indictment as it originally stood.

An amendment to an indictment returned by a grand jury must be entered upon the minutes of the court, and the Supreme Court will not look to the statements in the stenographer's notes to determine whether an amendment has been made. An amendment authorized by the court, but not entered on the minutes, leaves the indictment as it originally stood.

2 WITNESSES. Witness testifying on former trial may be examined as to his evidence on that trial; inconsistency between evidence of witness testifying on former trial with that on present trial may be shown by any witness hearing testimony stenographer's notes of evidence given by witness on former trial is not exclusive evidence of such testimony nor best evidence thereof.

A witness who has testified on a former trial may be examined as to his evidence on that trial, and, if the testimony on the former trial is inconsistent with that on the present trial, such fact may be shown by any witness who heard the testimony in the former trial and remembers what such testimony was. The taking down of such evidence by a stenographer on a former trial is not the exclusive evidence of such testimony nor the best evidence thereof within the meaning of the rule that the best evidence must be produced.

3. CRIMINAL LAW. Technical error in excluding testimony of witness given on former trial for impeachment purposes does not require reversal, unless contradiction is made which would affect result.

Where a witness testified in a trial, and it is sought to impeach his evidence by testimony on a former trial, and such impeaching evidence is excluded by the trial judge, the court will not reverse the case for such exclusion, unless the contradiction is made and would probably affect the result of the trial. If it would have little probative value upon the issues involved, and not likely affect the result, the court will not reverse, although its exclusion was technical error.

4 BURGLARY. Liquor not shown to have been intoxicating and unlawfully kept for sale will be treated as having property value as respects burglary.

Where a defendant indicted for burglary admits going into the building burglarized for the purpose of procuring liquor, and the evidence fails to show that the liquor was intoxicating and was unlawfully kept for sale or illegal use, it will be treated as having a property value, as the law does not destroy the property value in all intoxicating liquors under all circumstances.

5. CRIMINAL LAW. Error in refusing instruction as asked held not reversible without bill of exceptions showing refusal to use instruction as modified, or marking instruction as refused.

Where the trial court, on being requested for an instruction by the defendant, refused to give it as asked, but offers to give it with a modification, and such instruction is not marked "given and filed" by the clerk, or "refused and filed" by the clerk, and there is no bill of exceptions showing that the defendant refused to use the instruction as modified by the court, the court will not reverse the case for such alleged error.

HON. C P. LONG, Judge.

APPEAL from circuit court of Itawamba county, HON. C. P. LONG, Judge.

Vander Crane was convicted of burglary, and he appeals. Affirmed.

Judgment affirmed.

I. L. Sheffield, of Fulton, for appellant.

The testimony given on the trial of a case may be offered by witnesses who heard the trial and who heard the witnesses testify on a subsequent trial of the same case, and the stenographic notes need not be introduced.

Lee v. State, 137 Miss. 329, 102 So. 296; Hudson v. State, 100 Miss. 185, 56 So. 345; Magness v. State, 106 Miss. 195, 63 So. 352; Clark v. State, 108 Miss. 485, 66 So. 977.

If a witness swore on the former trial of the same case to material matter falsely, or made statements different from those made at the last trial, then defendant should have been permitted to have shown it.

Newcombe v. State, 37 Miss. 401; Dean v. State, 78 Miss. 360, 29 So. 95; Williams v. State, 73 Miss. 820, 19 So. 826; Garner v. State, 76 Miss. 515, 25 So. 363; Attorney-General v. Hitchcock, First Exchequer Repts. 90; Greenleaf on Evidence (16 Ed.), section 461-E; Second Wigmore on Evidence, section 959; McKelvey on Evidence (2 Ed.), page 411, section 261; Maxey v. State, 106 So. 363; Darby v. State, 121 Miss. 869, 81 So. 6; Y. & M. V. R. R. Co. v. Decker, 116 So. 287.

Section 1329 of Hemingway's Code of 1927, permits the making of amendments of indictments in cases where there appears to be a variance between the statements in the indictment and the evidence offered in the proof where such amendment is not material to the merits of the case.

White v. State, 95 Miss. 75, 48 So. 611; Hudson v. State, 73 Miss. 794, 19 So. 965.

Liquor cannot be the subject of larceny and therefore an intention to take, or even steal and carry away such stuff is not condemned by law.

Section 2235 of Hemingway's Code of Mississippi, 1927; J. & S. Goodman v. Swett, 66 So. 535, 108 Miss. 224; Lemonious et al. v. Mayer et al., 14 So. 33.

Forrest B. Jackson, Assistant Attorney-General, for the state.

The testimony was inadmissible for the reason that the stenographic notes of the testimony adduced at the former trial was the primary and best evidence and the loss, destruction, misplacement, or inavailability of the primary evidence necessarily would have to be shown before the secondary, or oral evidence of the witness' testimony would be admissible. As to the testimony not being contradictory but merely misleading and on an irrelevant matter, see the cases of;

Williams v. State, 73 Miss. 820, 19 So. 826; Lee v. State, 102 So. 296, 137 Miss. 329.

The loss, destruction, or misplacement of the best evidence must be shown as a proper predicate for the introduction of secondary evidence, see:

Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; McLeod Lumber Company v. Anderson Mercantile Company, 105 Miss. 498, 62 So. 274.

The method of making the amendment is not assailed by counsel for appellant. The amendment of the indictment to conform with the proof, to comply with the description of the person, and the ownership of the property in the indictment was proper under the provisions of section 1508, Code of 1906, section 1329, Hemingway's Code 1927, and under the rule announced in:

Washington v. State, 152 Miss. 154, 118 So. 719; Collier v. State, 122 So. 538.

The charge on which the appellant was tried and convicted was that of burglary. The "breaking" is condemned by section 1073, Code of 1906, section 837, Hemingway's Code 1927, defining the crime of burglary, and it is immaterial what the value of articles within the house may be.

Harris v. State, 61 Miss. 304; Brown v. State, 85 Miss. 27, 37 So. 497.

OPINION

Ethridge, C. J.

Vander Crane was indicted, tried, and convicted of burglary in the circuit court upon an indictment returned by the grand jury of Itawamba county, which, omitting the formal parts, reads as follows:

"That Vander Crane in said County, on the 25th day of February, A. D. 1929, the filling station of J. W. and S. N. Propst, then and there situated feloniously and burglariously did break and enter, with the intent, the goods, chattels and personal property of the said filling station of the said J. W. and S. N. Propst in said filling station kept for sale, then and there, feloniously and burglariously to take, steal and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi."

S. N. Propst testified that on the night on which the alleged burglary took place he had gone to town, or across the street, to get a coca-cola, and on returning to the place of business discovered that some one was in the filling station. He stated that he had left the station door locked, and that the window in the front room was found to be broken that night, and that previous to that night the window was not broken. He also testified that after the defendant left the filling station he (Propst) had gone to the rear of the building and saw the defendant pass out of the front door and go hurriedly away; that he had locked the window down when he went for the coca-cola, and that the window was securely fastened down. He sent for his father, and also went up town and found the defendant near a bank on the street of the town, and carried him back to the filling station and sent for the town marshal, and turned the defendant over to him.

The town marshal asked the defendant why he went into the building, and the defendant stated, "What would any man break, or go, into a house for except to get money or something out of it?" The testimony for the state showed that there was no inducement to obtain the said statement and no threat made against the defendant as an inducement therefor; that all that was said by the elder Propst was he was surprised to find him in the building, as their families had been friends for a long time, and that he would turn him over to the law. The testimony for the state as shown by the witnesses, was to the effect that the building was entered through a window by the defendant pushing out a pane of glass, the pane being large enough for a man to...