Robinson v. State

• Decision Date: 29 November 1978
• Docket Number: No. 50650,50650
• Citation: 364 So.2d 1131
• Parties: Richard ROBINSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1131

364 So.2d 1131

Richard ROBINSON v. STATE of Mississippi.

No. 50650.

Supreme Court of Mississippi.

Nov. 29, 1978.

Don H. Evans, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant was indicted, tried and convicted for the crime of burglary in the Circuit Court of the First Judicial District of Hinds County. He appeals, alleging the following assignments of error:

1. The court erred in not granting a new trial or in not dismissing the charge on the grounds that the property allegedly burglarized was alleged to be a dwelling and was alleged in the indictment to be the property of Carnell Perry, whereas the proof disclosed without dispute that the building was a motel known as the Alamo Plaza and that Carnell Perry was not the owner nor the innkeeper, but instead was merely an overnight guest.

2. The court erred in granting the State's instruction No. 2 over the defendant's objection.

3. The court erred in not sustaining the defendant's motion for a directed verdict at the close of the State's case in chief and in not granting the peremptory instruction in favor of the defendant after both sides had rested.

4. The court erred in not granting a new trial on the grounds that the verdict of the jury was contrary to the law and was against the overwhelming weight of the evidence and was such as to evince bias and prejudice against the defendant on the part of the jury.

The indictment charged that appellant,

. . . on the 26 day of February, A.D., 1977 did then and there unlawfully, feloniously and burglariously break and enter the dwelling house of Carnell Perry there situated, with intent the goods and chattels of the said Carnell Perry in the said dwelling house then and there being, then and there unlawfully, feloniously and burglariously attempted to take, steal and carry away; and various items located therein, but was intercepted and failed therein. . . .

The evidence practically was undisputed. At about 3:45 A.M. on February 26, 1977, the Jackson Police Department responded to a complaint about a prowler by the night desk clerk of the Alamo Plaza Motel. Two officers proceeded to the motel and while inspecting the premises noticed a window raised at the rear of Room 216. They then noticed a person "crawling backward out of the window." He was arrested and on his person the officers found $73 in cash. The screen to the window was lying on the ground next to the building. The officers found two occupants in the room a man and a woman. The woman advised them at that time that she and the man had gotten together at a local night club, such acquaintance resulting in the two of them going to the Alamo Plaza Motel at about 2:30 A.M. She testified that she paid for the room in advance and that they had been in the room for about an hour when the officers arrested appellant. She also stated that neither she nor her male friend had become aware of the entrance by appellant to the room. The record shows that the police officers were not advised at that time of any missing money but were advised by the woman the next morning that she was missing $60 of her own money and that she had been informed by her nocturnal companion that he too was missing some money approximately $70. No explanation was given as to what happened with the difference between these combined losses and that discovered on appellant. Of course, this unexplained activity on someone's part is immaterial to the decision of the case.

There are ten different crimes under the general heading of "burglary" in the crimes against property section of Mississippi Code Annotated (1972). Appellant was indicted under section 97-17-19, which reads as follows:

Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years.

We need to determine whether or not the facts as related above made the motel room the "dwelling house" of Carnell Perry at the time in question. If it was not, the motion of appellant at the conclusion of the evidence should have been granted due to a fatal variance between the charges in the indictment and the proof.

Code section 97-17-31, styled "Burglary dwelling house defined," reads as follows:

Every building joined to, immediately connected with, or being part of the dwelling house, shall be deemed the dwelling house.

We therefore see that the Legislature in this section, passed in 1848, did not see fit to extend the term "dwelling house" beyond the normal understanding of the meaning of that term.

In 13 Am.Jur., Burglary section 3 (1964), we find the following:

A dwelling house has been variously defined as the apartment, room in a hotel, building or cluster of buildings in which A man with his family resides, or any permanent building in which a man may dwell and lie. (emphasis added)

In 85 A.L.R. 428 (1933), we find the following:

At common law, burglary was considered to be an offense against habitation rather than against property. . . . what was sought to be protected was the peace of mind and security of the residents, rather than the property.

In the case of Watson v. State, 254 Miss. 82, 179 So.2d 826 (1965), this Court was confronted with deciding whether or not a residence "nearing completion" was the dwelling house under the statute. The Court, in reversing the appellant's conviction, stated:

The essence of the distinction made by the Court in the cited cases between burglary of a dwelling and burglary of a building not a dwelling is that in the former the building must then be a place of human abode. If a dwelling is actually occupied by a human being at the time of...