Faust v. State, 39231
| Decision Date | 04 October 1954 |
| Docket Number | No. 39231,39231 |
| Citation | 74 So.2d 817,221 Miss. 668 |
| Parties | James FAUST v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
F. W. Stratton, Liberty, for appellant.
J. P. Coleman, Atty. Gen., Wm. E. Cress-well, Asst. Atty. Gen., for appellee.
The appellant was convicted in the Circuit Court of Amite County on an indictment charging him with the crime of burglary, and was sentenced to serve a term of seven years in the State penitentiary. From this judgment of conviction he prosecutes this appeal.
The indictment was drawn under Section 2043 of the Mississippi Code of 1942, which provides in its pertinent parts as follows: 'Every person who shall be convicted of breaking and entering in, the day or night, any shop, store * * * or other building * * * in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, * * * shall be guilty of burglary, and imprisoned in the penitentiary not more than seven years.'
The State's proof showed substantially the following: On October 13, 1953, appellant was in jail in Amite County, held on a charge of the unlawful possession of liquor, in that he was charged with unlawfully having in his possession a bottle of wine, which the sheriff had seized and was holding in his office for evidence. On the afternoon of that day, the appellant was released on bond. Later that night, the sheriff received an anonymous telephone call informing him that he had better check the courthouse, that something might happen there. The sheriff requested the Town Marshal of Liberty to accompany him, and together they went to the courthouse. The marshal concealed himself in the sheriff's office and the sheriff waited on the outside. Shortly thereafter the appellant appeared on the scene and entered the courthouse. He tried the door of the sheriff's office, and failing to gain entrance there, he came out and after peering in several windows, he tore the screen and broke the glass of one of the windows in the sheriff's office and entered the office. The marshal fired his pistol and turned on the light and discovered the appellant with a Coca Cola bottle which the appellant dropped on the floor. The appellant then jumped through the window and fled. The Coca Cola bottle contained gasoline, and a wine bottle with gasoline in it was found on the ground outside of the window. Among other things of value which the sheriff had in his office at the time of its entry by the appellant were from $1,000 to $1,500, representing collections on the sale of automobile, tags, a number of guns, and a quantity of contraband liquor. The officers apprehended the appellant about 3:30 o'clock in the morning and arrested him and his prosecution on the charge of burglary followed.
The appellant admitted breaking into the sheriff's office, but testified that his purpose in so doing was to take the bottle of wine and substitute gasoline for the contents thereof and thus destroy the evidence against him on the liquor charge, and that he had been instigated, lured, and induced to do the same by Lonnie Banks, a trusty in the jail, who was acting in concert with the sheriff.
It is first assigned as error that the trial court erred in refusing the request of the appellant made at the outset of the trial to have the sheriff, a witness for the State, placed under the rule. The sheriff was called as the first witness for the State and was examined as to the facts within his knowledge. He was recalled during the course of the introduction of the State's proof. The action of the court in declining the appellant's request was with respect to a matter wholly within the discretion of the court and should not be disturbed in the absence of a showing that the court manifestly abused his discretion. Graham v. State, 195 Miss. 291, 15 So.2d 478; Sartorious v. State, 24 Miss. 602. We are of the opinion that there was no abuse of the court's discretion resulting in prejudice to the appellant, and we are therefore not warranted in interfering with the court's action.
The appellant next contends that the court erred in denying his request for a directed verdict for the reason, first, that the proof is insufficient to show that the appellant entered the building with the felonious intent to steal property of a greater value than $25, and, second, that there...
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