Henderson v. State, 54662
| Decision Date | 08 February 1984 |
| Docket Number | No. 54662,54662 |
| Citation | 445 So.2d 1364 |
| Parties | Jacob HENDERSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
T. Frank Collins, Collins & Dreher, Jackson, for appellant.
Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.
I.
This case presents the question whether the rules of English grammar are a part of the positive law of this state. If they are, Jacob Henderson's burglary conviction must surely be reversed, for the indictment in which he has been charged would receive an "F" from every English teacher in the land.
Though grammatically unintelligible, we find that the indictment is legally sufficient and affirm, knowing full well that our decision will receive of literate persons everywhere opprobrium as intense and widespread as it will be deserved.
II.
On May 15, 1982, the Maaco Paint Shop in Jackson, Mississippi, was burglarized. Jacob Henderson was arrested immediately thereafter, four items of stolen merchandise still in his possession.
On July 6, 1982, Henderson was formally charged with business burglary in violation of Miss.Code Ann. Sec. 97-17-33 (1972) in an indictment returned by the Hinds County Grand Jury. The indictment further charged that Henderson was a recidivist within the meaning of Miss.Code Ann. Sec. 99-19-81 (Supp.1983). Henderson entered a plea of not guilty to all charges.
On February 9, 1983, this case was called for trial in the Circuit Court of Hinds County. In due course, the jury found Henderson guilty on the principal charge of burglary.
Immediately thereafter, the circuit court conducted a non-jury hearing on the recidivism issue. Without contradiction, the evidence From this conviction and sentence, Henderson appeals.
established that Jacob Henderson had, prior to that date, been convicted of two separate felonies, both burglaries. Accordingly, under the authority of Section 99-19-81 the circuit court sentenced Henderson to serve a term of seven years without eligibility for probation or parole.
III.
The primary issue presented on this appeal regards the legal adequacy of the indictment under which Henderson has been tried, convicted and sentenced. That indictment, in pertinent part, reads as follows:
The Grand Jurors for the State of Mississippi, ... upon their oaths present: That Jacob Henderson ... on the 15th day of May, A.D., 1982.
One (1) Realistic AM/FM Stereo Tuner
One (1) Westminster AM/FM radio
One (1) Metal Box and contents thereof, ...
the property of the said Metro Auto Painting then and there being in said store building did then and there unlawfully, feloniously and burglariously take, steal and carry away the aforesaid property, he, the said Jacob Henderson, having been twice previously convicted of felonies, to-wit: ....
The remainder of the indictment charges Henderson with being a recidivist.
Henderson, no doubt offended, demurred. In support, he presented an expert witness, Ann Dreher, who had been a teacher of English for nine years. Ms. Dreher testified that, when read consistent with accepted rules of English grammar, the indictment did not charge Jacob Henderson with doing anything; rather it charged that goods, ware and merchandise broke and entered the paint store. The trial judge overruled the objection and the motion, but not without reservation. He stated:
[T]his same objection has been made numerous times. It is one of Mr. Hailey's pets. [B]ut as far as I know no one has elected to appeal and I'm going to follow the decision whether it is grammatically correct or not. I have repeatedly begged for six years or five years for the district attorney not to use this form. It is very poor English. It is impossible English.... In addition to being very poor English, it also charges him with the crime of larceny, which is not necessary to include in an indictment for burglary. I never did understand the reason for that. I again ask the district attorney not to use this form. It's archaic. Even Shakespeare could not understand the grammatical construction of this indictment. But the objection will be overruled. Maybe it will take a reversal on a case of a similar nature where there is a serious offense as this one is by the fact that he is indicted as a habitual to get the district attorney's attention.
In the trial court and on this appeal, Henderson insists that the meaning of the indictment may be obtained only within the strait jacket of accepted rules of grammatical construction of the English language. From this point of view, we are asked to examine the indictment and concentrate on the words "... unlawfully, feloniously and burglariously did break and enter ...." Who, we are asked, when the rules of good grammar are employed, did this alleged breaking and entering?
There are two possible answers (again, looking at the indictment as would an English teacher). "Goods, ware and merchandise" are the most obvious choice. Those nouns proximately precede the verb(s) "did break and enter" (separated only by the familiar string of adverbs "unlawfully, feloniously and burglariously"--the district attorney, like other lawyers, never uses one word when two or three will do just as well). Thus read, the indictment charges that Goods, ware and merchandise, not Jacob Henderson, burglarized the Maaco Paint Shop on May 15, 1982.
More properly, however, the words "Goods, ware and merchandise" are seen as the tail end of a largely unintelligible effort to describe something else: the store building. A perceptive English grammarian would conclude that it is "the store building there situated...." which is charged with the burglary, for those words seem to constitute the subject of the nonsensical non-sentence we are charged to construe.
Even so, whether the indictment charges that "Goods, ware and merchandise" or "The store building there situated" ... "unlawfully, feloniously and burglariously did break and enter ...." matters not to Jacob Henderson. His point is merely that the indictment does not charge that he did the breaking and entering.
Were this a Court of nine English teachers, Henderson no doubt would prevail.
The indictment does contain at the outset the charge "That Jacob Henderson ... on the 15th day of May, A.D., 1982." We have another non-sentence. The unmistakable period after 1982 is used by astute defense counsel to nail down the point--that the indictment fails to charge that Jacob Henderson did anything on May 15, 1982. Again, we must concede that grammatically speaking counsel is correct. The period after 1982 grammatically precludes the possibility that the indictment charges that Jacob Henderson did break and enter. Either the words "did break and enter" would have to precede the period, or the name Jacob Henderson would have to appear following it. Neither is the case.
Recognizing that the period is important, the State argues that in reality the indictment consists of one long sentence, written albeit in legalese instead of English. The State argues that "the period grammatically disjoined the first part of the sentence from the second", conceding that we are indeed confronted with "a patently inappropriate period". This, of course, prompts Henderson to analogize the state's argument to Lady Macbeth's famous 1 W. Shakespeare, Macbeth, Act V, sc. 1, line 38. The retort would be telling in the classroom or in a court of the literati. Alas, it has meager force in a court of law.
The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.
An indictment shall also include the following:
(1) The name of the accused;
(2) The date on which the indictment was filed in each court;
(3) A statement that the prosecution is brought in the name and by the authority of the State of...
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