Poe v. State
| Decision Date | 02 February 1931 |
| Docket Number | 29170 |
| Citation | 132 So. 92,159 Miss. 76 |
| Court | Mississippi Supreme Court |
| Parties | POE v. STATE |
Instruction on subject of larceny, omitting word "felonious" which is essential element of crime of larceny, held erroneous.
APPEAL from circuit court of Tate county, HON. GREEK L. RICE, Judge.
Perry E. Poe was convicted of grand larceny, and he appeals. Reversed, and cause remanded.
Reversed and remanded.
W. B Nichols, of Jackson, for appellant.
The court erred in granting instruction No. 2 for the state which is as follows:
The court instructs the jury for the state that although they may have a reasonable doubt as to the breaking and entering of the Coldwater Oil Company building, yet, if they believe from the evidence beyond a reasonable doubt that the defendant Perry E. Poe did take, steal and carry away brass fixtures, valve wrenches and other fixtures, the personal property of C. F. Sherard, Jr., then it is your sworn duty to find the defendant guilty of larceny, and if they further believe from the evidence beyond a reasonable doubt that the property so taken, stolen and carried away was of the value of twenty-five dollars or more, you should return a verdict finding the defendant guilty of grand larceny, and, if they believe from the evidence beyond a reasonable doubt that the value of the property was less than twenty-five dollars, then you should return a verdict finding the defendant guilty of petty larceny.
It will be noticed that no where in this instruction is the word "feloniously" used.
Section 1030, Hemingway's Code of 1927; Section 1031, Hemingway's Code of 1927; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Hamilton v. State, 35 Miss. 214; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; Akroyd v. State, 107 Miss. 51, 64 So. 936.
W. A. Shipman, Assistant Attorney-General, for the state.
No judgment shall be reversed on the ground of misdirection to the jury unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.
Rule No. 11 of the Supreme Court.
An examination of the entire record, we submit, will show that the misdirection by the court below to the jury in the matter of defining the offense of larceny does not result in a miscarriage of justice; that the evidence on behalf of the state shows the guilt of the appellant beyond a reasonable doubt of the offense of larceny; that the omission by the court below of one essential ingredient of the crime of larceny in the definition thereof contained in instruction number two for the state is purely technical, and that the guilt of the appellant of the crime which the instruction sought to define is manifestly shown by the testimony.
The appellant, Perry E. Poe, was indicted and tried on a charge of burglary and larceny, and was...
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