Osser v. State

• Decision Date: 06 February 1933
• Docket Number: 30231
• Court: Mississippi Supreme Court
• Parties: OSSER v. STATE

145 So. 754

165 Miss. 680

OSSER v. STATE

No. 30231

Supreme Court of Mississippi

February 6, 1933

Division A

Suggestion Of Error Overruled March 6, 1933.

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

Charles Osser was convicted of burglary, and he appeals. Affirmed.

Affirmed.

Geo. T and Chas. Mitchell and Blair & Anderson, all of Tupelo, for appellant.

Under the charge of statutory burglary of a storehouse, warehouse, or any other building besides a dwelling house, it is incumbent upon the state to prove beyond a reasonable doubt and to a moral certainty, not only that the building in question was broken into by a party with intent to steal or to commit some felony therein but that the state must go further and prove by evidence that such building contained goods, merchandise, or other valuable things which were then and there present in said building for the purpose of sale, use, deposit or transportation.

Where one breaks and enters a building with the consent or approval of the owner he cannot be guilty of any crime because, under such circumstances, he could not have committed any crime.

Strait v. State, 77 Miss. 693, 27 So. 617.

Where the grand jury intended to lay the ownership of the property in one person and the proof shows that the ownership was in another and entirely different person from the person the grand jury had in mind, then the indictment cannot be amended under the above section 1289, Code of 1930.

The court erred in granting the following instruction:

The court charges the jury for the state that although you may believe from the evidence in this case that the defendant did not actually do the breaking of the door himself, yet if you further believe from the evidence beyond a reasonable doubt that he was present, aiding, encouraging and abetting the party who did the breaking at the time and place and in the manner and form as charged in the indictment, then he is as guilty as the principal, who actually broke the door.

This instruction absolutely ignores the defense of the accused.

Blair & Anderson, of Tupelo, for appellant.

The instructions cannot be read together and give to the defendant the benefit of his defense and the instructions granted the state conflict with the instruction granted defendant by the court and are erroneous.

Simmons v. State, 107 Miss. 463, 464; Barnes v. State, 118 Miss. 621; Gamblin v. State, 29 So. 764; Murphy v. State, 89 Miss. 827, 830; Mendin v. State, 33 So. 944.

One who is let into a building by a decoy or detective in the service of and acting for the owner, is not guilty of burglary in so entering.

Strait v. State, 77 Miss. 693.

The court erred in permitting the indictment to be amended to show that the property was the property of Mrs. Winona Hallmark instead of as charged in the indictment J. W. Hallmark.

Tyler v. State, 69 Miss. 195; Blumenberg v. State, 55 Miss. 528; Hudson v. State, 73 Miss. 784; White v. State, 95 Miss. 75; State v. Ellis, 102 Miss. 541; Clinton v. State, 142 So. 17.

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

It appears that the record fairly discloses that there were goods, wares and merchandise in this store building and that they were kept there for sale, or otherwise.

It is not shown that any of the interested parties had agreed, either directly or indirectly, for Osser to break in this place, take certain property and appropriate it to his individual use.

Section 1289, Code of 1930, provides when an indictment may be amended and how the same may be done.

This amendment changes neither the identity of the offense, nor the identity of the persons involved. It in no way affected the substantive rights of the defendant and was properly allowed. Roney v. State, 120 So. 445.

It is proper to amend an indictment so as to change the name of the owner of certain stolen property from "Lewis Thompson" to "Mrs. E. H. Taney."

Foster v. State, 52 Miss. 695.

It is permissible to amend an indictment so as to change the name of the person killed from "Man J." to "Earnest J."

Davis v. State, 150 Miss. 797.

If the variance between the indictment and the proof is not harmful to the defendant and the defendant has been informed by the indictment of the nature and cause of the crime, the variance is immaterial.

Davis v. State, 150 Miss. 797; Sanders v. State, 141 Miss. 249.

So far as the Monday night burglary is concerned, appellant denied being there and there is nothing in the record anywhere to remotely indicate that the parties in possession had authorized appellant to break and enter the store building and steal therefrom merchandise.

There should be no material conflict in the instructions, but, if there is any conflict, it must be an irreconcilable conflict to justify a reversal.

Williams v. State, 135 So. 210.

Putting the instructions together, they correctly present to the jury instructions as to the different theories entertained by the state and the defendant respectively.

OPINION

Cook, J.

The appellant was indicted and convicted in the circuit court of Lee county on a charge of burglary, and was sentenced to serve a term of five years in the state penitentiary.

Leaving off the formal and jurisdictional parts, the indictment charged that the appellant did feloniously and burglariously break and enter the storehouse of J. W. Hallmark then and there situated, with intent the goods, chattels, and personal property of the said J. W. Hallmark, in said storehouse kept for sale, then and there feloniously and burglariously to take, steal, and carry away.

J. W. Hallmark, a witness for the state, testified that the business conducted in the storehouse alleged to have been burglarized belonged to his wife, Winona Hallmark, and was conducted under the trade-name of J. W. Hallmark Grocery; that the stock of goods and merchandise contained in said building was her property, and the rent of the storehouse was paid out of the profits of the business. When this testimony was developed, the state requested, and was granted, permission to amend the indictment by substituting the name of Mrs. Winona Hallmark for that of J. W. Hallmark, as the owner of the property burglarized, and the appellant assigns as error this amendment of the indictment.

The conviction of appellant rests principally upon the testimony of an alleged accomplice, Thurman Shettles, who testified that, by previous arrangement between them, he and the appellant met at Mrs. Hallmark's storehouse on a certain Monday night about 8:30 o'clock for the purpose of breaking and entering the store and stealing a slot machine and the contents thereof; that the appellant secured a tow sack from a nearby garage and wrapped it around a stone which he gave to the witness for the purpose of breaking the door; that they then proceeded to the front of the store, where the witness Shettles broke the glass of the door with the wrapped stone; that they have entered the store and secured the slot machine, and the witness carried it out the back door and hid it under a small bridge, while the appellant went out the front of the store and went to his home nearby. This witness further testified that he later returned and moved the slot machine to the edge of a certain channel or canal; that he met the appellant the next morning, and they then secured fishing tackle for the pretense of fishing, and then went to the channel where he had hidden the slot machine; that the appellant broke open the slot machine with an axe, and thereupon divided the money found therein, amounting to about nine dollars, giving to the witness a little more than three dollars in nickles and retaining the balance. He further testified that later in the day the appellant came to his (the witness') home and remained there throughout the night, and, in discussing the burglary in the presence of the witness and his wife, explained to them how he regained access to his home after the burglary, and made a pretended investigation at the store after pretending to have been aroused from his bed by a noise, and then reported the burglary to his father and those interested in the premises.

On cross-examination he testified that he and the appellant broke into the store again on the following Wednesday night and that as he (the witness) left the store by the back door he was arrested by the sheriff. This...