McDowell v. The State
| Decision Date | 26 January 1891 |
| Citation | 8 So. 508,68 Miss. 348 |
| Court | Mississippi Supreme Court |
| Parties | GREEN MCDOWELL v. THE STATE |
October, 1890
FROM the circuit court of Coahoma county, HON. GEORGE WINSTON, Judge.
The opinion sufficiently shows the point decided.
Judgment reversed.
Rucks Yerger, for appellant.
Ownership of the property stolen must be proved as laid in the indictment. If laid in several, proof of ownership in one is insufficient. 2 Bish. Cr. Pro. § 723; Murphy v. State, 24 Miss. 594.
T. M. Miller, attorney-general, for the state.
The property was in the possession of Weathersby, and he owned at least a half interest in it. It was right to lay ownership in him. 2 Russ. on Cr. 160. Should appellant be again indicted, he could plead autre fois convict.
The judgment in this cause must be reversed because of the variance between the averment in the indictment and the evidence in relation to the ownership of the property stolen. There is conflict between the state's witnesses as to whether the cotton stolen belonged to Weathersby (in whom the property is laid in the indictment) or to Weathersby and one Lowe, as joint owners.
The 3d and 4th instructions for the state informed the jury that it might convict if the evidence showed that the defendant stole the cotton and that Weathersby owned or had an undivided interest therein. This was error. In larceny, ownership must be proved as laid, and where two or more persons own the property stolen, the allegation in the indictment must be according to the fact. Wharton's American Cr. Law, § 1833; Com. v. Trimmer, 1 Mass. 476; State v. McCoy, 14 N.H. 364; 12 Am. & Eng. Ency. of Law, 863, citing 35 Texas, 691; 74 N.C. 272; 3 S.C. 16; 4 McCord (S. C.), 16.
Judgment reversed.
To continue reading
Request your trial
- Wood v. State
-
Johnson v. State
... ... charged, either general or special ... Bishop's ... New Crim. Law, secs. 788, 789, 790 ... Ownership ... in larceny must be proved as laid ... McGaha ... v. State, 173 Miss. 829, 163 So. 442; Hughes v ... State, 74 Miss. 368, 20 So. 838; McDowell v ... State, 8 So. 508 ... While ... we understand the rule to be well settled that a conviction ... will be upheld on the evidence of an accomplice unless such ... evidence is improbable or on its face self-contradictory and ... that the question of the credibility of such ... ...
-
State v. Rathbone
... ... the description of the offense charged." ( People v ... Wallace, 94 Cal. 497, 29 P. 950.) To the same effect ... are: People v. Hughes, 41 Cal. 234; Clark v ... State, 29 Tex. App. 437, 16 S.W. 171; Sharp v ... State, 29 Tex. App. 211, 15 S.W. 176; McDowell v ... State, 68 Miss. 348, 8 So. 508; People v. Hall, ... 19 Cal. 425; Bishop's Criminal Procedure, 3d ed., 718, ... 723, 752, 4886; Allen v. State, 42 Tex. 517; ... Murray v. Trinidad Nat. Bank, 5 Colo. App. 359, 38 ... P. 615; Chavez v. Territory, 6 N. Mex. 455, 30 P ... 903; ... ...
- Davis v. State