Newburn v. State

• Decision Date: 11 December 1967
• Docket Number: No. 44522,44522
• Citation: 205 So.2d 260
• Parties: Willie NEWBURN, Jr. (Alias Willie Newborn) v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 260

205 So.2d 260

Willie NEWBURN, Jr. (Alias Willie Newborn) v. STATE of Mississippi.

No. 44522.

Supreme Court of Mississippi.

Dec. 11, 1967.

H. Bernard Gautier, Pascagoula, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jakcson, for appellee.

DODGERS, Justice:

The appellant, Willie Newman, was convicted at the October 1966 term of the Circuit Court of Jackson County, Mississippi of the charge of burglary under section 2036, Mississippi Code 1942 Annotated (1956), with the intent of committing the crime of violating the person of a child as defined by section 2052, Mississippi Code 1942 Annotated (Supp.1966).

Appellant was sentenced to serve a term of twelve years in the state penitentiary. He has appealed from that sentence and the circuit court judgment. Appellant insists that he was entitled to a directed verdict of acquittal at the conclusion of the testimony, or that he should have been granted a new trial, for the following reasons: (1) The State failed to prove the essential element of 'breaking' required by the charge of burglary; (2) The State did not prove that the alleged breaking was done with the intent of committing the crime charged; (3) The evidence did not show that the alleged assault was done with the intent to gratify his sexual desire; (4) The proof did not show the age of the defendant; (2) Two instructions granted the State were erroneous; and (6) The indictment charged two offenses.

The prosecution and conviction of appellant resulted from the following facts and circumstances. Mr. and Mrs. Gregory Sholtes occupy a residence at 490 Lake Avenue in Pascagoula, Mississippi. They have two children, a little boy and a little girl. The girl, named Julie, is nine years old. On the night in question Julie occupied a room across the hall from the bathroom and across the hall from a room occupied by Mr. and Mrs. Sholtes. The light was on in the bathroom, and the door to her room and the door to her mother's room were open so that the bathroom light illuminated the room occupied by Julie. About three o'clock on the morning of April 28, 1966, Julie was awakened by dogs barking. She heard a door open and heard footsteps approaching her room from down the hall. A Negro man entered her room and went to her bed. The intruder put his hands on her mouth and tried to kiss her. He told her he wanted her 'to come with him.' Julie began to scream. Her mother heard the screams and ran to the child. As the came into the hall she saw the back of a man's head as he ran out of the house. Julie saw the intruder in the light of the bathroom, and was able to give her mother a good description of the man. She said that he was a colored man who had a mustache, and she described the clothes the man was wearing. Mrs. Sholtes could describe only the back of the individual's head. The police were notified, and a police car in the area went immediately to the Sholtes home. Another police patrol automobile approached the Sholtes home, and as it passed a street about eight blocks away, the officers noticed that the dogs in the area were barking. They observed the appellant running down the street, gave chase and apprehended him. They took him to the Sholtes home, where he was identified by Julie. The appellant was scratched and bleeding. He had briers in his skin, and his pants were torn in several places. The testimony shows that there was a barbed wire fence around a marsh adjacent to the Sholtes home.

The appellant contends that the State failed to prove the essential element of 'breaking' required by section 2036, Mississippi Code 1942 Annotated (1956), since it was not shown exactly where the intruder entered the house and there was no physical evidence of a broken door or broken window. The testimony shows that all the outer doors were closed, and Julie testified that she heard a door open and heard the footsteps of the intruder as he came down the hall to her room. We are of the opinion that this is ample evidence to show the required element of 'breaking' under the charge of burglary. We have repeatedly held that evidence of the slightest force necessary to open an entrance into a dwelling house is sufficient to satisfy the essential element of breaking under the charge of burglary of an inhabitant's dwelling. See Fondren v. State, 253 Miss. 241, 175 S.2d 628 (1965); 12 C.J.S. Burglary § 3b (1938).

The contention of the appellant that the indictment charges two crimes is not well taken, because the allegation of the second crime set forth in the indictment is (in this instance) an element of the crime of burglary. Section 2036, Mississippi Code 1942 Annotated (1956) requires that before the defendant can be convicted of felonious 'breaking and entering' it must be shown that such 'breaking and entering' was done 'with intent to commit some crime therein.' That crime must be named and described in the indictment. If the crime is a common law crime, it must be described as a common law crime. If the crime is a statutory crime, it must be charged in the indictment as defined and set out in the statute. State v. Buchanan, 75 Miss. 349, 22 So. 875 (1897); Brumfield v. State, 206 Miss. 506, 40 So.2d 268 (1949); Faust v. State, 221 Miss. 668, 74 So.2d 817 (1954). The fact that an intruder not only 'intended' to commit a named crime but actually did commit such a crime, makes the allegation in the indictment no less an element of the charge of burglary. Harris v. State, 61 Miss. 304 (1883); Roberts v. State, 55 Miss. 421 (1877).

Moreover, two crimes may be charged in burglary indictment in a single count where, in fact, two crimes have been committed. Brown v. State, 103 Miss. 664, 60 So. 727 (1912); Roberts v. State, 55 Miss. 421 (1877); Harris v. State, 61 Miss. 304 (1883); Smith v. State, 57 Miss. 822 (1880). If, however, burglary and larceny are charged in one count in an indictment as two distinct crimes, the crime of larceny is merged in burglary in the sense that the accused, if found guilty, can be sentenced for burglary though not for larceny; but if acquitted of burglary, he may be convicted and sentenced for the larceny. Miss.Code 1942 Ann. § 2523 (1956). This seems to be the general rule. Parker v. People, 13 Colo. 155, 21 P. 1120, 4 L.R.A. 803 (1889); Brees v. State, 12 Ohio St. 146, ,0 Am.Dec. 340 (1861); 9 Am.Jur. Burglary § 53 (1937).

The appellant also contends that the indictment did not adequately charge an intent to commit a felony. He points out that section 2036, Mississippi Code 1942 Annotated (1956) is in fact declaratory of the common law and requires that the State must show that the intruder intended to commit a 'felony' in the dwelling, because-it is said-the common law requires such proof, and the word 'crime' set out in the statute means a 'felony.'

This question has not been presented to this Court before, as far as we have been able to discover, but it has been presented to other state supreme courts under similar statutes. In State v. Snowden, 174 La. 156, 140 So. 9 (1932), the defendant argued on appeal that in the prosecution for burglary it is essential to show that the crime intended to be committed within the building was a felony. The court said, however:

'The language of the statute virtually answers defendant's argument. The statute not only enumerates certain crimes which must be alleged and shown, that an offender entered with the intent to commit, but also by using the words 'or any other crime' after the offenses specifically mentioned, it makes the breaking and entering to commit any crime whatever a criminal offense. And this is so whether the crime an offender intends to commit is a felony or a misdemeanor-a criminal offense being an offense against the state, including both felonies and misdemeanors.' (140 So. at 11.)

The Supreme Court of Iowa had before it a similar case, State v. Corliss, 85 Iowa 18, 51 N.W. 1154 (1892), under a state statute making it a burglary offense to unlawfully break and enter with the intent to commit 'any public offense.' The court held that the wrongful breaking and entering for the purpose of committing adultery was burglary, because a state statute made the crime of adultery an indictable offense.

Section 2036, Mississippi Code 1942 Annotated (1956) establishes burglary of a dwelling house as 'breaking and entering, in the day or night, the dwelling house of another, in which there shall be, at the time, some human being, with intent to commit some crime therein * * *.'

Section 674, Mississippi Code 1942 Annotated (1956) is in the following words: 'The term 'crime,' when used in any statute, shall mean any violation of law liable to punishment by criminal prosecution.'

In the case of Lewis v. State, 85 Miss. 35, 37 So. 497 (1904), this Court held that the word 'crime' as now set forth in section 674, Mississippi Code 1942 Annotated (1956) includes a misdemeanor as well as a felony.

We are of the opinion, and so hold, that the words set out in section 2036, Mississippi Code 1942 Annotated (1956), 'with intent to commit some crime therein,' include a misdemeanor as well as a felony.

The appellant contends that the instructions in this case were confusing and erroneous, but after a careful reading of these instructions we find no fault with them.

Appellant contends that the State failed to prove that at the moment of entry the defendant intended to commit an assault upon Julie Sholtes or 'intended to engage in any sort of sexual adventure.' The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime. Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant's intention...