Dedeaux v. State

Citation87 So. 664,125 Miss. 326
Decision Date04 April 1921
Docket Number21482
CourtUnited States State Supreme Court of Mississippi
PartiesDEDEAUX v. STATE

APPEAL from circuit court of Stone county, HON. D. M. GRAHAM, Judge.

Elmer Dedeaux was convicted of larceny of sheep, and he appeals. Reversed and remanded.

Cause reversed and remanded.

Mize & Mize, for appellant.

The attorney-general, in his last brief in this case, cites the following, taken from the case of Crockford v State, 73 Neb. 1, to-wit: "The taking by one not the owner, into his possession, a calf running at large, with intent to convert it to his own use and deprive the owner of his property without his consent, constitutes the crime of actual stealing within the statute."

When this case is read, it will be found to be binding authority for appellant's contention, as the taking in or off the range of the calf in the Crockford case is very much like the driving of the sheep off the range, in the instant case. The court at page 4, of the Crockford case uses the following language:

"There was really but one question for the jury to determine, and that was, whether, when the accused took the calf alleged to have been stolen into his possession he did so with the felonious intent to steal it, and these two instructions fairly submitted the issue to the jury as a question of fact which was its province to pass on."

The court, on reading the instructions, will find that the court in Nebraska, as in many other states, of its own motion instructed the jury on the general law applicable to the case, and, in both the instructions for the defendant and the state, the court emphasized that there had to be a felonious taking at the time, and further, that if the defendant took it, not with the intent to steal it, which embraces the felonious taking, and converted it to his own use after he had it in his possession, he would not be guilty of larceny. We know of no stronger case in support of our contention than the Crockford case.

The case of Lamb v. State, 40 Neb. 312, cited and commented on by the court in the Crockford case, supra, is a case of all fours with the instant case, where a hog was taken from the range into the possession of the appellant and the appellant was attempting to make away with it and share in the proceeds and was convicted of larceny, in which case the court said at the bottom of page 316, 40 Nebraska:

"That it was proper to submit in the form of an instruction and the court did submit an instruction, which told the jury that, in order to convict the defendant, he had to have the intent to steal at the time of taking the property. The intent to steal of course embraces all the elements of larceny."

Webster defines, "stealing" as "to take and carry away feloniously, to take without right or leave and with intent to keep wrongfully; as to steal the personal goods of another." This definition is adopted in the case of Baldwin v. State, 35 So. 220. The primary meaning of the word "steal" is "to take and carry away feloniously." State v Minnick, 102 P. 605, adopting the definition given by Webster.

The word "steal" or "stealing," in a criminal statute, when unqualified by the context, signifies a taking which at common law would have been denominated, felonious Gardner v. State, 26 A. 30. The elements of stealing at common law are the wrongful or fraudulent taking and removal of the personal property by trespass with the felonious intent to deprive the owner thereof and to convert the same to the taker's own use. Barbe v. Territory, 16 Okla. 562.

An indictment for larceny which merely alleges that accused feloniously did steal, take and carry away property described without alleging the intent to convert it, is sufficient since the word "steal" means in common and legal parlance the felonious taking and carrying away of the personal goods of another. State v. Perry, 126 S.W 717.

The word "steal" has a uniform significance, and in common as well as legal parlance means the felonious taking and carrying away of the personal goods of another. State v. Richmond, 128 S.W. 744. The word "steal" includes all the elements of larceny at common law. Cohoe v State, 113 N.W. 532.

If the instruction had embodied the idea of taking with intent to steal the sheep in the instant case, it would have been unnecessary to use the word feloniously, but the instruction did not embrace this.

We lay down the proposition that no case will be found where the court holds that an instruction just alleging the defendant took property away with the intent to deprive the owner of it is sufficient as a statement of facts that would constitute larceny if believed by the jury. Of course, if it embodied the language that he stole the property or took it with intent to steal it, this would embrace feloniously and the statute of Mississippi defining grand larceny uses the word "feloniously."

Suppose the indictment had not used the word "feloniously," but just embraced the language of the instruction complained of. Then a demurrer to the indictment would be good; but the indictment in this case is good and an essential ingredient of the indictment is that the taking must have been felonious or fraudulent. Therefore, if the court holds that the instruction is good, it will be committed to the doctrine that you do not have to prove all the material elements of the indictment to convict the defendant, which is not and cannot be the law.

And, as to the contention that the jury had the right to look to the indictment to splice out the instruction, that is wholly untenable, because the indictment is a mere allegation and the instruction must be based on the proof. If it is true that the jury has to look to the indictment to splice out the instructions, then every erroneous instruction, where the indictment is good, could be spliced out and made a good instruction by supplying its deficiencies from the indictment; and we therefore submit that this court on this point, as well as on the other points discussed, is bound to reverse this case.

W. M. Hemingway, assistant attorney-general, for the state.

The first question for the consideration of the court is as to Vardaman Dedeaux being an accomplice. There is no testimony on this point but his. He had nothing to do with getting the sheep nor with bringing them home. It was Zeno's place. Consequently, the intent to take the property of Ladnier was missing. Ladnier was deprived of his property before the boy knew anything about it, and the property was in the possession of Elmer Dedeaux and his aiders, consequently the larceny was complete without his assistance or aid. Under the state of the case indictment could not have been found against Vardaman Dedeaux. His act was not ordinarily corrupt. 16 Corpus Juris, sections 1344, 1345, 1349, also section 1355.

The fact even that Vardaman Dedeaux had knowledge of the intended crime does not make him an accomplice. 16 Corpus Juris, section 1356.

Mere approval of the crime after the event does not constitute one an accomplice. The definition of larceny is elementary and the court will recognize the crime had been committed before Vardaman Dedeaux had anything to do with it. The presence of a person without the intent to do and abet their purpose of stealing does not make him guilty. Hodgett v. The State, 40 Miss. 522, 2 Mor. St. Cas. 1505; McCarty v. State, 26 Miss. 299; 1 Mor. St. Cas. 705.

This is conclusive that Vardaman Dedeaux was not an accomplice. The court, therefore, had the right to refuse to give instruction on the testimony of an accomplice.

In Cheatham v. The State, 67 Miss. 335, 7 So. 204, the court should not pile up words suggestive of the desire for the jury to dismiss as unworthy of consideration the testimony of the accomplice. Wilson v. The State, 71 Miss. 880.

A conviction may be had on the uncorroborated testimony of an accomplice. Wilson v. State, 71 Miss. 880; Fitzcocx v. State, 52 Miss. 923; White v. State, 52 Miss. 216; Osborn v. State, 55 So. 52; 16 Corpus Juris, page 696, section 1423 and Note 60 and 61.

Instruction on this subject, which was refused, page 39 of the record, the jury was told to regard the testimony of the accomplice with great care, caution and suspicion, in connection with all the other evidence in the case. They were also told in the same instruction, that they are the judges of the credibility of the witnesses. This was placing too great a burden on the testimony of a seventeen year old boy where all of his relatives were taking sides in the trial. The jury was told to regard the evidence with suspicion. This placed too great a burden and should have been refused as it was for our court is getting away from such instruction.

Defendant objected to instruction for the state because it does not give the definition of larceny in technical terms; because it did not use the words "feloniously" or fraudulently, done--nor did it tell the jury that the intent to deprive the owner thereof must have been felonious or fraudulent. The instruction is not objectionable because it concludes with the words: "You should find the defendant guilty as charged in the indictment." This makes the indictment, which the jury had the right to take out with them, a part of the instruction.

In the case of Edwards & Co. v. The City of Jackson, 91 Miss. 429, 45 So. 14, this language was used: "Be it resolved by the Mayor and Board of Aldermen for the city of Jackson, proceeding under section 3011, of the Code of 1892 etc." The court said: "By this resolution of the board, section 3011 became as much a part of the ordinance as if the literal language had been incorporated into the resolution itself." So, when the jury is told to find him guilty as charged in the indictment, the indictment is...

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