Nichols v. State

• Decision Date: 07 November 1932
• Docket Number: 30232
• Citation: 144 So. 374,164 Miss. 158
• Court: Mississippi Supreme Court
• Parties: NICHOLS v. STATE

144 So. 374

164 Miss. 158

NICHOLS v. STATE

No. 30232

Supreme Court of Mississippi

November 7, 1932

Division B

1. BURGLARY. There was no variance where indictment charged that storehouse burglarized was property of two individuals and testimony showed it belonged to partnership composed of such individuals.

There was no variance because partnership is not regarded as strictly a legal entity distinct from the individuals composing it, and having an independent existence, nor as a person, either natural or artificial, but the ownership of partnership property is in individuals composing partnership.

2 BURGLARY.

Indictment charging burglary must allege ownership of building burglarized, and such ownership must be proved as alleged.

HON THOS. H. JOHNSON, Judge.

APPEAL from circuit court of Lee county, HON. THOS. H. JOHNSTON Judge.

Hollis Nichols was convicted of burglary, and he appeals. Affirmed.

Affirmed.

Geo. T. and Chas. S. Mitchell, of Tupelo, for appellant.

The sole question that we desire to present to this court in this case is whether or not there is a variance between an indictment and the proof when the indictment charges that the storehouse entered was the storehouse of L. P. McCarty and Roy McCarty and the intent charged was to steal property situated therein belonging to L. P. McCarty and Roy McCarty, and the proof is to the effect that the storehouse broken into was the storehouse of L. P. McCarty & Son and the property stolen was the property of L. P. McCarty and Son, which was a partnership composed of L. P. McCarty and Roy McCarty.

It is the contention of appellant that when a storehouse in the possession of a partnership firm is broken into and burglarized, the indictment must specify the fact that the storehouse broken into was in the possession of the partnership firm and must specify the name of the partnership firm and also the names of the respective partners, just the same as if a storehouse in the possession of a corporation must be specified in the indictment as the storehouse of that particular corporation, specifying the name of same.

There is a fatal variance between the indictment and the proof in this case.

It is certainly settled that it is necessary to allege the ownership of the building burglarized and to prove it as laid, and when a corporation is alleged to be the owner of a building, there must be proof of the existence of the corporation.

James v. State, 77 Miss. 370; 3 Enc. Pl. & Prac. 758; 2 Bishop New Criminal Procedure 137; Wright v. State, 94 So. 716.

If it is necessary to allege the ownership and prove the allegation as alleged when a corporation is involved, is it not reasonable to require the same allegation specifically when a partnership is involved. We can see no difference.

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

This court has recently held that possession, even though wrongful, is good as against a burglar.

Clinton v. State, 142 So. 17.

The proof in this case shows that the building burglarized was in possession of L. P. McCarty and Roy McCarty and that they were doing a partnership business therein.

Burglary is an offense against the possession.

47 C. J. 747, 749.

There is a very marked difference between a partnership and a corporation in that the law recognizes a corporation as a separate and distinct legal entity, whereas our law does not recognize a partnership as such distinct legal entity. Possession of property by a corporation is in the corporation itself, whereas possession of partnership property is in the partners, as individuals, and not as a partnership.

Conceding for the sake of argument, that there is a variance, as contended for by appellant, is that variance material and does it affect the substantive rights of appellant? It is not...