Crosby v. State
| Decision Date | 09 June 1941 |
| Docket Number | 34674. |
| Citation | 2 So.2d 813,191 Miss. 173 |
| Court | Mississippi Supreme Court |
| Parties | CROSBY v. STATE. |
E L. Dent, of Collins, for appellant.
Greek L. Rice, Atty. Gen., and Geo. H. Ethridge, Asst. Atty. Gen for appellee.
The appellant was convicted on a charge of having burglarized "a certain building, commonly called a store building in which there was then and there kept for use and safety money, tobacco and other articles of merchandise and other valuable things of Mrs. Thelma Hicks * * *". The ownership of the money and the merchandise which was alleged to have been taken, stolen and carried away from the store building is sufficiently alleged to have been that of Mrs Thelma Hicks, but nowhere in the indictment is there to be found any allegation as to who owned the building which is said to have been burglarized. It is essential that an indictment charging burglary allege the ownership of the building. James v. State, 77 Miss. 370, 26 So. 929, 78 Am.St.Rep. 527; Brown v. State, 81 Miss. 143, 33 So. 170; Lewis v. State, 85 Miss. 35, 37 So. 497; State v. Ellis, 102 Miss. 541, 59 So. 841; House v. State, 121 Miss. 43, 83 So. 337; Wright v. State, 130 Miss. 603, 94 So. 716; Wood v. State, 155 Miss. 298, 124 So. 353; Clinton v. State, 163 Miss. 435, 142 So. 17; Nichols v. State, 164 Miss. 158, 144 So. 374; Cooksey v. State, 175 Miss. 82, 166 So. 388, and Woods v. State, 186 Miss. 463, 191 So. 283.
The appellant failed to demur to this indictment, but he requested the court to peremptorily instruct the jury to find him not guilty at the conclusion of all of the evidence. There was also a motion for a new trial, but the insufficiency of the indictment to charge the crime of burglary is raised for the first time in this Court on appeal.
Section 1206, Code of 1930, reads as follows: "Indictment-demurrers to-when filed in capital cases.-All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward; and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared."
The question is therefore presented as to whether the failure to charge the ownership of the building burglarized is a mere defect in the indictment or is an essential element of the crime attempted to be charged. If the insufficiency of the indictment was due to a defect which could have been remedied in the court below by an amendment, then the point is waived by the accused if he fails to interpose a demurrer, but the statute above set forth only authorizes the Court to permit the indictment to be amended as to any formal defect. Section 1289, Code of 1930, provides, among other things, that "whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village division, or any other place mentioned in such indictment * * * or in the ownership of any property named or described therein * * * it shall and may be lawful for the court befor which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof * *". This section is not applicable here, however, since there is no variance between a statement in the indictment as to the ownership of the building burglarized and the evidence on the trial in regard thereto. Here, there is no statement at all in the indictment as to the ownership of the property. Hence, the decision in the cases of Osser v. State, 165 Miss. 680, 145 So. 754; and Cooksey v. State, 175 Miss. 82, 166 So. 388, 389; and other like cases cannot be invoked in support of the state's contention that an amendment of the indictment would have been authorized under...
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