James v. State

• Decision Date: 15 January 1900
• Citation: 26 So. 929,77 Miss. 370
• Court: Mississippi Supreme Court
• Parties: ALLEN JAMES ET AL. v. STATE OF MISSISSPPI

26 So. 929

77 Miss. 370

ALLEN JAMES ET AL. v. STATE OF MISSISSPPI

Supreme Court of Mississippi

January 15, 1900

December 1899

From the circuit court of Washington county, HON. F. A MONTGOMERY, Judge.

Allen James and Edward Clark were indicted for burglary and larceny. The indictment charged the breaking and entering of a railroad ear, the property of the Illinois Central Railroad Company, a corporation, with intent to steal the personal property of the said corporation then in the said car; and further charged the stealing from said car of a number of pairs of shoes, the property of the Hamilton-Brown Shoe Company, a corporation. There was no proof of the corporate existence of either corporation. Clark and James were put upon their trial jointly; the verdict was "guilty as charged;" a judgment was thereupon entered, and, after a motion for a new trial was overruled, the defendants were sentenced to the penitentiary. Defendants appealed to the supreme court.

As to Edward Clark, the judgment is reversed, the verdict set aside, and the cause remanded for a new trial. As to Allen James, the judgment is affirmed.

J H Wynn, for appellant, Ed. Clark.

The evidence is utterly insufficient to support the verdict against Clark; it neither proves nor tends to prove his guilt, and the motion for a new trial should have been sustained as to him.

C. J Jones, for appellant, Allen James.

Wiley N. Nash, attorney-general, for appellee.

The evidence is sufficient to uphold the verdict of guilty. Most of the errors assigned were never raised in the court below, and there is no merit in those which were raised there.

"A judgment in a criminal case shall not be reversed because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made the ground of special exception in that court." Annotated code 1892 § 4370; Hunt v. The State, 61 Miss. 577; Lea v. The State, 64 Miss. 201.

OPINION

WHITFIELD, J.

We have seldom had before us a more unintelligible record.

So far as Edward Clark is concerned, it is sufficient to say that the conviction is utterly unwarranted by the testimony.

As to Allen James, we notice the contentions of learned counsel for the appellant, as follows: When the indictment charges burglary with larceny, the averment of ownership in the part charging the larceny is surplusage, and may be rejected. The precise point is decided in Brown v. State , 72 Miss. 990 (18 So. 431), and also in Harris v. The State , 61 Miss 304. The principle is stated in Tyler v. State , 69 Miss. 395, at page 397 (11 So. 25). "Where the entire averment of which the descriptive matter is a part is surplusage, it may be rejected, and the descriptive averment need not be proved. But it must be proved as charged wherever, if the person, thing, act, place, or time to which it refers was struck from the indictment, no offense would be charged." 1 Bish. New Cr. Proc., sec. 485. Of course, we are speaking of a case where, as here, the general verdict of guilty as charged is a conviction of the principal offense alone, as held in Roberts v. State , 55 Miss. 421, at page 424. If the averment that the shoes were the property of the Hamilton-Brown Shoe Company were stricken out, the bur-glary with intent to steal would he well charged. Brown's case, supra. The cases of Mobley v. State , 46 Miss. 501 (attempt to commit a rape); John v. State , 24 Miss. 569 (murder); Dick v. State , 30 Miss. 631 (attempt to commit a rape); and Tyler v. State , 69 Miss. 395, 11 So. 25 (11 So. Rep., 25) (unlawful sale of intoxicants) are not in point. It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid. 3 Enc. Pl. & Prac., p. 758, notes 3, 4; 2 Bish. New Or. Proc., sec. 137. And, when a corporation is alleged to be the owner, there must be proof of the existence of the corporation. Id. , sec. 138; Warwick v. State , 73 Ala. 486; Berry v. State , 92 Ga. 47 (17 S.E. 1006); and Norton v. State , 74 Ind. 337, at page 338, are directly in point. Mr. Bishop says (2 New Cr. Proc. p. 71) that "the de facto character of the corporation only need be shown in evidence;"...