Jones v. State

• Decision Date: 29 April 1935
• Docket Number: 31643
• Citation: 172 Miss. 597,161 So. 143
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE

161 So. 143

172 Miss. 597

JONES v. STATE

No. 31643

Supreme Court of Mississippi

April 29, 1935

Division A

1 BURGLARY.

Design to effect entrance into dwelling unlawfully may be shown by circumstances in trial for attempt to commit burglary (Code 1930, section 793).

2 BURGLARY.

An act may be sufficient in and of itself to warrant jury in finding that one charged with attempt to commit burglary intended to commit such crime (Code 1930, section 793).

3 BURGLARY.

"Intent" to commit burglary implies purpose only, while "attempt" to do so implies both purpose and actual effort to carry such purpose into effect (Code 1930, section 793).

4. BURGLARY.

Conviction of attempt to commit burglary will be sustained, if method employed was calculated to carry out such unlawful purpose, though not most sensible or usual method (Code 1930, section 793).

5. BURGLARY.

Mere fact that one charged with attempt to commit burglary rattled window of dwelling "like he was trying to get in" raised no presumption that he intended to commit such crime (Code 1930, section 793).

6. BURGLARY.

Intent to commit burglary was essential, indispensable element of crime charged by indictment for attempting to break and enter dwelling house by breaking or forcing window thereof, with intent to take, steal, and carry away personal property therein (Code 1930, section 793).

7. BUROLARY.

Evidence, in trial for attempt to commit burglary, that, defendant rattled window of dwelling houso "like he was trying to get in" and falsely stated that, cook thereat had told him to bring some eggs there, held insufficient to sustain conviction (Code 1930, section 793).

HON. E. L. BRIEN, Judge.

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

Harry, alias Percy, Jones was convicted of an attempt to commit burglary, and he appeals. Reversed, and defendant discharged.

Reversed, and appellant discharged.

Harry K. Murray, of Vicksburg, for appellant.

The prosecution herein was commenced in the circuit court of Warren county under section 793, Code of 1930. The statute is declaratory of the common law. What constitutes an overt act under the statute cannot be stated in the abstract. The proof of intent to commit a burglary in the instant case must rest upon the bare fact that the negro defendant went upon the front porch of a residence in Cherry street, a principal thoroughfare in Vicksburg, Mississippi, about nine-thirty o'clock at night, where there was light in the front room and a negro attendent on the premises, and shook the window.

The elements of criminal intent coupled with an overt act must be proved.

3 Am. & Eng. Enc. of Law, page 254; Cunningham v. State, 49 Miss. 685.

The defendant's request for a peremptory instruction and directed verdict of acquittal should have been granted.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

There must be an attempt to commit a crime, and an act towards its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately, when an act is done, the law judges, not only of the act done, but of the intent with which it was done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.

Stokes v. State, 92 Miss. 415, 46 So. 627; Cunningham v. State, 49 Miss. 685; State v. Wade, 102 Miss. 711, 59 So. 880; Miller v. State, 130 Miss. 730, 95 So. 83; Dill v. State, 149 Miss. 167, 115 So. 203.

In the case at bar the defendant's presence at this home at that time of night and the things he did when he got to the house are at least of such nature as that the jury would be warranted in saying that he was there attempting to make a burglarious entry into this home. The judgment appealed from should be affirmed.

OPINION

McGowen, J.

Appellant was convicted in the lower court on an indictment charging him with an attempt to commit burglary, and was sentenced to serve a term of five years in the state penitentiary, from which this appeal is prosecuted. The indictment, in part, charges that the appellant did "wilfully, feloniously and burglariously attempt, wilfully, feloniously and burglariously to break and enter the dwelling house of one Mrs. Hester C. Flowers by breaking or forcing a window of said dwelling with the intent wilfully, feloniously and burglariously to take, steal and carry away the personal property therein contained."

The indictment is predicated upon section 793, Code 1930, which is, in part, as follows: "Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall," etc.

In Miller v. State, 130 Miss. 730, 95 So. 83, 84, an attempt under this statute was defined as follows "Under this section there are two necessary elements to constitute the offense, first, the intent to commit an offense; and, second, an overt act toward its commission"--citing to support this the cases of Cunningham v. State, 49 Miss. 685, and State v. Wade, 102 Miss. 711, 59 So. 880, in which latter case the court held that the language of the statute was but an apt statement of the common law. In the case of Stokes v. State, 92 Miss. 415, 46 So. 627, 629, 21 L.R.A. (N.S.) 898, we find this statement of the law: "There must be an attempt to commit a crime, and an act toward its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately when an act is done, the law judges, not only of the act done, but of the...