Dees v. State

• Decision Date: 14 January 1907
• Docket Number: 12411
• Citation: 89 Miss. 754,42 So. 605
• Court: Mississippi Supreme Court
• Parties: WALTER DEES, ET AL., v. STATE OF MISSISSIPPI

42 So. 605

89 Miss. 754

WALTER DEES, ET AL., v. STATE OF MISSISSIPPI

No. 12411

Supreme Court of Mississippi

January 14, 1907

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Walter Dees and Charles Fleming, appellants, were jointly tried and convicted of burglary upon an indictment charging burglary and larceny; were sentenced to the penitentiary for seven years, and appealed to the supreme court.

The indictment charged that the appellants on a designated date "did unlawfully, wilfully, feloniously and burglariously break and enter into the storehouse of Holmes Brothers, then and there the goods, wares and personal property of said Holmes Brothers wilfully and feloniously to take, steal and carry away, and did then and there a certain lot of shoes of the value of $ 15, a certain lot of pants of the value of $ 20, and a lot of jewelry, consisting of watches, of the value of $ 3 each, $ 63, all of the aggregate value of $ 98, being the goods and personal property of said Holmes Brothers then in said store kept and stored, unlawfully, wilfully feloniously and burglariously take, steal and carry away contrary to the form of the statute," etc.

The verdict of the jury was: "We, the jury, find the defendants guilty as charged." The court thereupon adjudged appellants guilty of burglary.

It appeared from the state's testimony that the building burglarized was a storehouse belonging to Holmes Brothers, a partnership, and that the building had been wrongfully broken into on a prior occasion; and the owners, in order to catch the guilty party, had engaged one Chapman as a detective to secure evidence warranting a conviction. Chapman thereafter in pursuance of the scheme, acquired the confidence of the appellants, whom he suspected of the previous breaking, and it was agreed between them that the storehouse should be burglarized upon a designated night. The owners, comprising the partnership of Holmes Brothers, and other witnesses secreted themselves and overheard the conversation between Chapman and appellants in which the burglary was planned. On the night designated the owners of the storehouse, an officer, and one of the employes of the firm, secreted themselves in the storehouse to await the entry of appellants. According to the testimony offered by the state, the appellants, accompanied by Chapman, went to the back door of the storehouse, and appellants forced the door of the store open, entered and took the articles of merchandise mentioned in the indictment, and began to carry them away, when, while still in the storehouse, they were arrested by the officer.

The contention of appellants on the trial was that they were enticed into the crime by Chapman, who had planned the burglary; that they did not break open the door, but that Chapman did, and, having entered, he invited them to follow, which they did, being both under the influence of intoxicants at the time. Appellants further contended that the owners, through Chapman, consented to their entrance into the storehouse.

Affirmed.

Harris & Powell, for appellants.

For a party to commit burglary three things must occur: There must be a felonious breaking, an absence of consent of the owner, and an intent to commit a crime.

There was practically a consent upon the part of the owners of the building to the breaking of the store. The testimony offered by the state shows that Chapman was acting as agent for Holmes Brothers, who owned the store; that the whole matter was planned beforehand by Chapman and Holmes Brothers, even to the most minute detail; and that Chapman was with the appellants when the breaking occurred, and aided in breaking into the store, or consented thereto.

Under such circumstances Chapman's consent was the consent of the owners of the store. Hence, as there was consent, there was no burglarious breaking. Strait v. State, 77 Miss. 693 (S.C., 27 So. 617); Common v. People, 25 L. R. A., 341; 5 Am. & Eng. Ency. Law, 51.

Under the facts, as proven by appellants' witnesses, the court below erred in granting the first instruction for the state. This instruction, in effect, charged the jury that if from the evidence they believed beyond a reasonable doubt that the defendants, either alone or in conjunction with Chapman, broke into the store, and that such breaking was without the consent of Holmes Brothers, and that the defendants when detected were in the act of stealing the goods mentioned in the testimony, then the defendants were guilty as charged, regardless of who actually broke open the store, and regardless of the fact that Holmes Brothers had agreed to pay Chapman for assisting in the detection and apprehension of the defendants.

It was also error for the court below to refuse to grant the second instruction to defendants, in effect as follows: "If you believe from the evidence that Chapman broke open Holmes Brothers' store, unassisted by either of the defendants, and that in so doing he did not intend to commit a crime after so breaking, then neither of the defendants is guilty of the charge in the indictment."

The action of the court below in reference to these two instructions constitutes reversible error, because it is admitted that Chapman was acting for Holmes Brothers, and with their consent, and that he knew that they were secreted in the store at the time of the breaking, in company with the officers of the law. He knew that the door had been left unbolted, and only partly fastened, for the purpose of making the burglarious entry easy, and he knew that the arrest was to be made inside of the store, when the parties should have entered. It is evident that Chapman did not intend to commit any crime whatever. And if he alone, as stated in the instruction asked by appellants, did the breaking, unaided and unassisted by appellants, he was not guilty of intending to commit a crime; and accordingly a necessary ingredient of burglary was lacking, to wit, the felonious intent. And as Chapman was not guilty of the crime, the appellants were not guilty.

Under the authority of Strait v. State, supra, the refusing of this second instruction for appellants was certainly such error as must result in reversal.

We note that the learned assistant attorney-general, in reply to our contention, states that the refusal of the court below to grant the instruction to appellants would have been error if the instruction had only limited itself to the crime of burglary, but, says he, it was not error to refuse the instruction, inasmuch as the crime of larceny was also charged in the indictment. And he draws the deduction that had the court instructed the jury to acquit the appellants of the charge in the indictment it would have meant that they should acquit the appellants of the charge of larceny as well as burglary.

In reply to this we say that the real crime aimed at in the indictment was burglary, and that larceny was only incidentally charged. Roberts v. State, 55 Miss 421; Harris v. State, 61 Miss. 304. In the cases cited this court said that where there is a general verdict of guilty on an indictment charging both burglary and larceny, it will be regarded as a conviction of burglary alone. We accordingly submit that the argument of the learned assistant attorney-general is too refined and technical; but if it be that he is correct in his contention, then he is impaled on the other horn of the dilemma, for in the first instruction granted to the state, the court told the jury that, regardless of who broke open the store, the appellants were guilty as charged, if the jury should hold them guilty at all. This was...