Gilford v. State

• Decision Date: 09 July 1917
• Docket Number: 19748
• Citation: 115 Miss. 300,76 So. 279
• Court: Mississippi Supreme Court
• Parties: GILFORD v. STATE

76 So. 279

115 Miss. 300

GILFORD v. STATE

No. 19748

Supreme Court of Mississippi

July 9, 1917

Division A

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN Judge.

Sam Gilford was convicted of burglary and appeals.

The evidence showed that a warehouse in the city of Vicksburg was robbed of certain groceries; that appellant had in his possession groceries of the same description in large quantities a day or two after the storehouse was robbed.There was no evidence that a lock had been broken, or window raised.The only testimony introduced by the state to show that the store had been robbed was that the porter of the warehouse testified that when he unlocked the warehouse at the usual time in the morning, he noticed certain boxes had been broken open and a large part of the contents removed.

Reversed and remanded.

J. N Piazza and A. A. Chaney, for appellant.

Burglary as a common-law offense, is the breaking and entering a dwelling house in the nighttime for the purpose of committing a felony therein whether the felony is committed or not.The manner of entrance has not been changed by our statute.Section 1073,Code 1906, under which this indictment was drawn provides that: "Every person who shall be convicted of breaking and entering, in the daytime or night, any shop, store, booth, etc., shall be guilty of burglary and imprisoned in the penitentiary not more than seven years."Breaking and entering, therefore at common law and under our statute, is a necessary element of the crime.To convict one of burglary it is essential that the state shall prove, beyond a reasonable doubt, the corpus delicti, that is, that the offense charged in the indictment has been committed by some one, and then the fact and circumstances must be sufficient to convince a jury beyond a reasonable doubt that the offense was committed by the defendant.To prove the corpus delicti the evidence must be sufficient to show that there has been a breaking and entering, entering alone not being sufficient.Evidence which leaves a doubt or leaves it to conjecture as to the manner of entrance is not sufficient.Ross v. State,42 So. 801;Mathews v. State, 18 So. 683:

In the trial of this case in the court below there was absolutely no evidence whatsoever that there had been a breaking and entering of the wareroom in question, and no evidence, in fact that proved an entry except the missing of the goods by the negro who opened the room on the morning in question.The negro carried a key to the place and it is much more reasonable to assume that he is the guilty party instead of this defendant.

The only evidence against this defendant is that he had some goods in his possession of a similar description to the goods missing from the wareroom.His contention is that some one whose name he gives delivered him the property.This testimony was not contradicted.But even tho he may have come in possession of the property illegally he cannot be punished for burglary unless it is shown that the place was actually burglarized by some one.Harper v. State,71 Miss. 202;Mathews v. State, 61 Miss. 155.

Proof of possession by the defendant shortly after the burglary, if, in fact burglary is shown, of goods alleged to have been stolen, is to be considered by the jury.Such evidence, however, is not sufficient if the possession by defendant is otherwise reasonably explained, unless his explanation is shown to be false.Evidence of the possession of the stolen goods will not support a conviction for burglary unless the breaking and entering are clearly shown.9 Corpus Juris, 1080 and annotations.

Frank Robenson, assistant attorney-general, for the state.

Section 1073, of the Code under which defendant was indicted, reads as follows: "Every person who shall be convicted of breaking and entering, in the day or night, any shop, store booth, tent, warehouse, or other building, ship, steamboat, flat-boat, or railroad car 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, or who shall be convicted of breaking and entering, in the day or nighttime, any building within the curtilage of a dwelling house, not joined to, immediately connected with, or forming a part thereof, shall be guilty of...