McFarland v. State, 38245

• Decision Date: 17 December 1951
• Docket Number: No. 38245,38245
• Citation: 55 So.2d 457,212 Miss. 802
• Parties: McFARLAND v. STATE.
• Court: Mississippi Supreme Court

Page 457

55 So.2d 457

212 Miss. 802

McFARLAND v. STATE.

No. 38245.

Supreme Court of Mississippi, Division A.

Dec. 17, 1951.

Clay B. Tucker, Woodville, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

KYLE, Justice.

The appellant was convicted in the county court of Adams County for the crime of burglary, and was sentenced to imprisonment in the state penitentiary for a term of seven years.

The indictment charged that the appellant broke into and entered the dwelling house owned by Mrs. R. M. Dailey and others in the City of Natchez on the night of February 2, 1951. The breaking and entering occurred about 11:00 o'clock. Mrs. Dailey testified that she heard someone walking through the snow in her back yard, and requested her daughter-in-law to call the police department. The intruder walked upon the back porch and shook the bathroom door that opened out on the back porch. He then walked to the kitchen door and shook it. He then went to a window, removed the screen therefrom, broke the colloglass panes in the window, and climbed into the bedroom. Mrs. Dailey and her daughter-in-law ran into the front yard. Two police officers arrived a few minutes later. One of the officers searched the house immediately and found the appellant crouched in the bathroom. The officers immediately arrested the appellant. The only statement made by the appellant was that 'I don't know what made me come in here.' The officers testified that the screen had been torn from the window and the window broken and entered, as testified to by Mrs. Dailey and her daughter-in-law.

The two arresting officers and Mrs. Dailey and her daughter-in-law testified that the appellant was not drunk, that he was able to walk, and did not appear to be drunk. One of the officers testified that he did smell the odor of whiskey or beer on the appellant.

The appellant's defense was that he was drunk and that he had no knowledge whatsoever of his breaking and entering the home of Mrs. Dailey. The appellant testified that he quit work about 4:30 o'clock p. m., and that he ate supper at the Savoy Grill on Franklin Street with his brother, J. T. McFarland, about 5:30 p.m.; that Wilson Jackson came in a little later; that they then left the Savoy Grill and went across the street to the Blue Room Beer Garden where the appellant ordered a half pint of whiskey. Three or four other people were seated at the table with them, and more whiskey was purchased and consumed. The appellant stated that he did not remember when he and his brother left the Blue Room Beer Garden; that when he was able to remember anything more he was in jail. The appellant had come to Natchez from Wilkinson County. He testified that he had served in the Army during World War II, in China, Burma, and India, and that he had never been in any trouble before.

Several witnesses testified for the appellant to establish his claim that he was drunk at the time the alleged crime was committed. His brother, J. T. McFarland, testified that he ate supper with the appellant at the Savoy Grill about 5:30 p.m.; that Wilson Jackson joined them while they were eating; and that they then went to the Blue Room Beer Garden where the appellant helped to consume several half pints of whiskey. The appellant and Wilson Jackson turned over to J. T. McFarland the money that they had with them for safekeeping. Later during the night the three went to the Elite Beer Garden on the corner of Franklin and Pine Streets. Appellant drank more whiskey, and then he and his brother went to the Savoy Grill to get a sandwich. J. T. McFarland paid for the sandwich and after doing so returned to the Elite Cafe for the purpose of giving back to Wilson Jackson the money that Wilson Jackson had turned over to him for safekeeping. When J. T. McFarland returned to the Savoy Grill a few minutes later, the appellant was not there. Elizabeth Lemons, a waitress at the Savoy Grill, testified that the appellant was unable to eat the sandwich that he had purchased; that he was drunk and was ordered to leave the cafe; and that when he got up to leave he staggered toward the door, and the witness caught his arm and assisted him as he left the cafe.

Leona Shekings corroborated the testimony of Elizabeth Lemon as to the drunken condition of the appellant when he left the Savoy Grill between 10:30 and 11:00 o'clock p.m. Three character witnesses, who resided in Wilkinson County, testified that the reputation of the appellant for honesty in the community in which he lived was good.

Appellant's chief assignment of error on this appeal is that the court erred in refusing to grant the peremptory instruction requested by the appellant. And in support of this assignment of error appellant's attorney earnestly contends that the verdict is contrary to the great weight of the evidence, in that the evidence failed to show a felonious intent on the part of the appellant, at the time of the breaking and entering of the dwelling house, to commit larceny, and for the reason that the...