Davis v. State

• Decision Date: 30 September 1935
• Docket Number: 31795
• Court: Mississippi Supreme Court
• Parties: DAVIS v. STATE

163 So. 391

173 Miss. 783

DAVIS v. STATE

No. 31795

Supreme Court of Mississippi

September 30, 1935

Division B

1 BURGLARY.

Title as against burglar, is with possession, and possession is sufficient.

2 BURGLARY.

In burglary indictment, it is proper to aver ownership in tenant.

3. CRIMINAL LAW.

Codefendant's testimony that accused, codefendant, and another burglarized store and took therefrom cigars and cigarettes, which were sold to dealers, even if uncorroborated, held sufficient to sustain conviction of accused.

4. CRIMINAL LAW.

Insufficiency of evidence to sustain conviction must be raised in trial court on motion for new trial.

5. CRIMINAL LAW.

Trial court cannot give instruction unless asked to do so.

6. CRIMINAL LAW.

In absence of instruction defining offense, it must be presumed that jury understood essential elements of crime.

7. CRIMINAL LAW.

In prosecution in which indictment alleged that store building which was property of named partners was burglarized, instruction that fact that store building was owned by one partner was immaterial if jury believed that named partners operated and owned business conducted therein at time of burglary held not reversible error, although inaccurate, in absence of proof that possession of property was not in any one else than named partners.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county HON. S. F. DAVIS, Judge.

Pal Davis was convicted of burglary, and he appeals. Affirmed.

Affirmed.

E. L. Dent and W. W. Dent, both of Collins, for appellant.

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.

9 C. J., p. 1061; Sec. 26, Const. of Miss.; Clark v. State, 57 So. 209, 100 Miss. 751.

The indictment charged ownership of the building in the three Crafts, the proof showed ownership in only one, and the instruction states that it makes no difference as to the ownership of the building burglarized, but the jury should convict if the Crafts "operated and owned the business"--evidently meaning and referring to the merchandise in the building--"as the Blelzoni Provision Company."

Since the indictment charged joint ownership of the building in the three Chafts, and the proof showed only one of the Crafts owned the building, there was a fatal variance between the indictment and proof.

Since no amendment was had to make the indictment correspond with the proof, a matter of substantive right was violated and the variance was material.

Osser v. State, 145 So. 754.

As the rule in burglary, larceny, embezzlement, arson, and other kindred offenses, as to ownership is the same, for convenience, we have compiled and here quote the leading cases upholding our contention as to the material and fatal variance between the allegations in the indictment and proof in the case at bar.

5 C. J., p. 564; State v. Geo. James, 5 Am. & Eng. Ann. Cas. 1011, 194 Mo. 268; Sheedy v. State, 118 So. 373, 152 Miss. 82; Hampton v. State. 54 So. 722, 99 Miss. 176; McDowall v. State, 8 So. 508, 68 Miss. 284; Clinton v. State, 142 So. 17; Draughn v. State, 76 Miss. 574, 25 So. 153; James v. State, 77 Miss. 370, 26 So. 929; State v. Ellis, 59 So. 841, 102 Miss. 541; Wright v. State, 94 So. 716, 130 Miss. 603; Nichols v. State, 144 So. 374; Williams v. State, 49 Tex. C. R. 105, 90 S.W. 876.

We are unable to appreciate how the jury could intelligently arrive at a verdict in accordance with the proof with the inconsistent and contradictory instructions.

Waller v. State, 103 Miss. 635, 60 So. 725.

The verdict of the jury is against the overwhelming weight of the testimony.

Abele v. State, 138 Miss. 772, 103 So. 370; Sykes v. State, 92 Miss. 247, 45 So. 838; Brownless v. State, 147 So. 339; Hunter v. State, 102 So. 282, 137 Miss. 276; Byrd v. State, 123 So. 867, 154 Miss. 742.

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

Burglary is a crime against possession and not title. The occupant of a building at the time of a burglary is the owner of that building, so far as the burglary is concerned, even though such possession is wrongful and regardless of where the title may be.

Lewis v. State, 85 Miss. 35, 37 So. 497; Clinton v. State, 163 Miss. 435, 142 So. 17.

It is proper to aver ownership in a tenant where the charge is burglary.

Brown v. State, 81 Miss. 143, 33 So. 170.

Appellant says that the verdict in this case was against the overwhelming weight of the evidence. There was no motion for a new trial filed by or for appellant and hence this court cannot now pass upon this proposition. The trial court has not passed on it and this court reviews only that which was passed on in the court below.

Justice v. State, 170 Miss. 96, 154 So. 265; Sones v. State, 155 So. 188; Judon v. State, 155 So. 428; Bryant v. State, 157 So. 346.

OPINION

Ethridge, P. J.

The appellant was convicted in the circuit court of Humphreys county on a charge of burglary and sentenced to serve a term of five years in the state penitentiary. Omitting the formal parts, the indictment reads as follows:

"That Pal Davis, Pat Patterson, and G. L. Turk in said county on the eighteenth day of February, A. D. 1935, a certain store building there situate, of the property of T. B. Craft, Sr., Charles Craft, and T. B. Craft. Jr., in which goods, wares and merchandise were then and there kept for use, sale, deposit and transportation unlawfully, feloniously and burglariously did then and there break and enter, with the felonious intent the goods and chattels in said store building then and there being found, then and there feloniously and burglariously to take, steal and carry away," etc.

A severance was granted and the appellant was tried alone.

It appeared on the trial that the building was owned by T. B. Craft, Sr., but that he. Charles Craft, and T. B. Craft, Jr., were occupying a the building and doing business under the trade-name of "Belzoni Provision Company," a partnership and not a corporation. Charles Craft, a witness for the state, testified as follows:

"Q. Who has actual charge of the mercantile business? A. I do.

"Q. Now that business, those jointly interested in the profit and loss of it, are your father, your brother and yourself? A. That is correct.

"Q. You have actual charge of the goods, wares and merchandise? A. I have charge of the entire building. I attend to the property as well as the actual selling. That is due to my father's illness."

It is contended that there was a variance between the allegations of the indictment and the proof as to the ownership of the building, which was called to the attention of the court below in the motion for a peremptory instruction, and that, because of the variance, the conviction should be set aside.

The rule is that the title, as against a burglar, is with possession, and that possession is...