Hitt v. State, 38661

• Decision Date: 23 March 1953
• Docket Number: No. 38661,38661
• Citation: 63 So.2d 665,217 Miss. 61
• Parties: HITT v. STATE.
• Court: Mississippi Supreme Court

Page 665

63 So.2d 665

217 Miss. 61

HITT v. STATE.

No. 38661.

Supreme Court of Mississippi.

March 23, 1953.

Robert B. Smith III, Ripley, A. T. Patterson, Calhoun City, for appellant.

J. P. Coleman, Atty. Gen. by Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

LOTTERHOS, Justice.

This case involves a conviction of receiving stolen property. The indictment charged that on January 28, 1952, appellant bought and received from three named persons certain stolen property, knowing it to be stolen, which property was described as three sacks of cotton seed, the property of L. C. McFerrin, two spools of barbed wire, the property of T. M. Magers, and thirteen sacks of cotton dust or poison, the property of Kit Bryant. The evidence for the state tended to show that on the stated date, after dark, the three men named in the indictment stole three sacks of cotton seed from L. C. (Pete) McFerrin; that they took the seed to appellant's home and sold it to him; that they then left his home, went to another place, and stole two rolls of barbed wire from T. M. Magers; that they next went to the Kit Bryant place and stole thirteen sacks of cotton poison; that they took the wire and poison to appellant's home later that night and sold it to him; and that appellant knew that the property he purchased was stolen. Appellant admitted that he purchased the cotton seed and the poison from the three men, but denied that he knew it was stolen property. He denied that the sellers made two trips to his house, and claimed that he bought the seed and the poison at the same time. He denied buying the wire from them, and testified that the two rolls of wire found at his place a day or so later were part of four rolls of wire he had bought in a store early in January. It was shown by the owner of the store that appellant had in fact purchased four rolls of wire on January 2, 1952. It was developed in the proof that the thirteen sacks of poison were owned by Kit Bryant (a 1/8 interest), J. W. Bryant (a 1/8 interest), and Ernest Woodard (a 3/4 interest). Kit Bryant was the manager of the place and Woodard was a tenant.

Appellant first contends that there was a fatal variance between the indictment and the proof relative to the ownership of the stolen property, in that it was alleged that the thirteen sacks of poison were the property of Kit Bryant, whereas the proof showed that he owned only a one-eighth interest, the remaining part of the title being in two others. The trial judge agreed with this contention, and sustained a motion for amendment of the indictment. However, there was no written order for the amendment entered on the minutes. Therefore, the variance, if any, was not eliminated by the action of the court in sustaining the motion. Section 2533, Code of 1942; Shurley v. State, 90 Miss. 415, 43 So. 299; and Davis v. State, 150 Miss. 797, 117 So. 116. See, also, section 1639, Code of 1942.

It has been held in McAlpin v. State, 123 Miss. 528, 86 So. 339, that upon the trial of an accused on a charge of receiving stolen property, the ownership of the property alleged to have been stolen must be proved as laid in the indictment. This case was cited and followed in Pippin v. State, 126 Miss. 146, 88 So. 502, which involved a charge of obtaining goods under false pretense. The indictment charged that the accused had defrauded E. H. Rempe. The proof showed that he in fact had defrauded F. Rempe and Son, a partnership which was composed of E. H. Rempe and his brother. It was held that there was a fatal variance between the indictment and the proof. This court has reached the same conclusion in a larceny case, McDowell v. State, 68 Miss. 348, 8 So. 508. It is essential in an indictment for receiving stolen property to describe the property with the same particularity as is required in an indictment for larceny. Wells v. State, 90 Miss. 516, 43 So. 610.

If the proof in this case were merely to the effect that Kit Bryant owned a one-eighth interest in the poison and the other persons owned the rest of the title, these authorities would control. But there is evidence in this record that Kit Bryant was manager of the place, that the poison belonged to the place, that it was in a cotton house on the place, and that the cotton house was nailed up. On the other hand, there is evidence that the tenant, Ernest Woodard, owned three-fourths of the poison, that Kit Bryant and the tenant used the cotton house to put things in, that the tenant had access to the house, and that the tenant had as much right to use the poison as Kit Bryant did. In view of this proof in the record, can it be said that there is no material variance because the possession of Kit Bryant was such as to support the allegation of ownership by him? The general statement has been made that 'property may be described as that of the person from whose possession it was stolen, and therefore an averment of ownership in such person is sustained by proof that he had the actual care, management, and control of the property for another.' 76 C.J.S., Receiving Stolen Goods, Sec. 16d, p. 30. See also Renfrow v. State, 154 Miss. 523, 122 So. 750; Horn v. State, 165 Miss. 169, 147 So. 310; and Minneweather v. State, Miss., 55 So.2d 160.

Since this case must be reversed and remanded for reasons hereinafter stated, we do not find it necessary to follow this first proposition to a conclusion, in order to determine whether there was a material variance here, under the somewhat conflicting testimony in the record. In other words, we are assuming that on a second trial the record will be such that the point will not be presented.

Appellant also assigns as error the refusal of the trial judge to permit him to make a record of the testimony which he desired to offer from a certain witness, when the court had sustained objections to several questions propounded and the witness had not been permitted to answer. The witness first identified himself and stated that recently he had been over appellant's place. He was then asked several questions with reference to any new fence observed on the place, but objections thereto were sustained and no answers were made. Counsel for appellant thereupon asked, 'Could we exclude the jury and let me make the record?', to which the court replied, 'I will not let you do that. If he knows the buying of any wire, get that.' Counsel then asked, 'And the court denies...