Draughn v. State

• Decision Date: 06 March 1899
• Citation: 76 Miss. 574,25 So. 153
• Court: Mississippi Supreme Court
• Parties: WILLIAM DRAUGHN v. STATE OF MISSISSIPPI

25 So. 153

76 Miss. 574

WILLIAM DRAUGHN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 6, 1899

November 1898

FROM the circuit court, first district, of Perry county, HON. A G. MAYERS, Judge.

The facts are sufficiently stated in the opinion of the court.

Reversed and remanded.

Hartfield & McLaurin and M. W. Mounger and Mc Willie & Thompson, for appellant.

Draughn was indicted for burglary, under § 991, code of 1892 the charge being that he broke and entered the dwelling house of West, "with intent to commit the crime of larceny therein." The indictment was not a good one under § 996 of the code. It does not aver that any "goods merchandise or valuable thing" was kept in the house for "use, sale, deposit or transportation." Nor was it good under any statute or at common law, because the larceny is not properly charged. West, the owner of the house, testified: "It was not my dwelling house. It was a 'sorter' crib. It was a house I had taken for a crib. It was not my dwelling house. It had been, but it was not my dwelling house. I had taken it for a crib." This was all the testimony on the subject of the character of the house, except a statement that a plank which had been nailed to an old, fallen-down chimney had been pulled off. Of course it does not follow that, because a house has a chimney, it is necessarily a dwelling. Even if the house was at one time a dwelling house, it ceased to be one when abandoned as such and when used, as the one in question was, for other purposes. Scott v. State, 62 Miss. 781.

The conviction was, therefore, unwarranted, and it ought to be reversed. It cannot be maintained as a conviction under § 996, code of 1892, because the appellant was not indicted for violating that section and the crime defined therein is not embraced in the crime defined by § 991, code, and is not embraced in the present indictment.

The only evidence connecting appellant with the crime sought to be proven by the state was some pretended confessions said to have been made by him. When the state offered to prove these pretended confessions the defendant objected thereto on the ground that the pretended confessions were not voluntary, and asked to have the jury retire, and that the court hear the evidence as to whether the pretended confessions were voluntary and admissible as evidence against him. The court overruled the objections and denied the request. In this the court below erred. Hunter v. State, 74 Miss. 515, and cases cited. The error is a reversible one. If the trial judge ever determined the question as to whether the pretended confessions were free and voluntary, he did so incidentally, and he deprived appellant of the right to introduce witnesses showing the facts under which the pretended confessions were made, disconnected with other matters. The correct procedure in such cases is necessary for the protection of the innocent. In this case we feel an assurance that, under the evidence on the subject shown in the record--that which went to the jury--this court cannot say that it does not entertain a reasonable doubt as to whether the so-called confessions were free and voluntary.

Appellant's motion for a new trial should have been sustained for the errors already mentioned herein, and it should have been sustained because the verdict was not warranted by the evidence. The proof on the subject of the character of the house required an acquittal. But, aside from the character of the house, even if we look to the pretended confessions there was no proof that Draughn broke and entered the house. The evidence about the tracks amounted to nothing. There was no confession by Draughn that he broke and entered the house. The pretended confession consisted in causing a piece of bacon to be delivered to the prosecutors. Appellant did not say or in any way affirm that he was ever at the house; did not admit that the bacon was that which had been stolen, and he was not found in the possession of the stolen property. We do not see how any sensible man can do so, excluding all reasonable doubt of its truth from his mind, yet, if we accept as true the bald statements of the prosecuting witness, that the meat which was brought to him by appellant's child was the identical piece of bacon which was taken...