Smith v. State

• Decision Date: 06 November 1916
• Docket Number: 18984
• Citation: 72 So. 929,112 Miss. 248
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE

72 So. 929

112 Miss. 248

SMITH v. STATE

No. 18984

Supreme Court of Mississippi

November 6, 1916

APPEAL from the circuit court of Warren county, HON. E. L. BRIAN Judge.

Alex Smith was convicted of grand larceny and appeals.

The facts are sufficiently stated in the opinion of the court.

Affirmed.

W. E Mollison, for appellant.

There was a fatal variance between the allegation of ownership laid in the indictment and the evidence adduced on the trial.

The indictment charges that "a certain cow, the property of Ethel Young, Mathew Young, John Young and Perry Young, was feloniously taken." The proof shows unmistakably that the cow was the property of Berry Young the father, who was killed long after the cow was taken, and who had discovered its whereabouts in his lifetime. The state showed by John Young, one of the owners laid in the indictment (page 23 of the record) that he, Ethel, Mathew, and Perry, Jr., had inherited this cow from Perry, Sr. The evidence shows that if taken at all feloniously, the crime was complete during the lifetime of Perry, Sr., and as no one can be heir to the living there was no title in the four persons named in the indictment. No citation of authorities is required to show this learned court that the conviction in this case was improper and ought to be reversed. The court will pardon the pleader for naming a few of the cases which establish the doctrine beyond question, that in the question of ownership the allegata and probata must agree or conviction will not be sustained.

We quote from 25 Cyc. page 888: In an indictment for larceny the ownership of the property must be alleged." Turner v. State, 124 Ala. 59; People v. Piggot, 126 Cal. 509; Buffington v. State, 124 Ga. 24; State v. Ellis, 119 Mo. 437; and others. The same authorities 25 Cyc. page 89.

"The allegation of ownership is material and must be proved as alleged in order to secure conviction." McBride v Commonwealth, 13 Bush, Ky. 337; Commonwealth v. Williams, 1 Va. Cas. 14, and the citations following from the English and Canadian courts.

In the American Criminal Reports the court held in volume 13, page 712, 35 So. 65: "that where the indictment charged an assault upon Rosa Lee Nelson and the evidence showed that the person was Rosa Lee Ann, the court held that the conviction must be reversed."

We admit that it was entirely proper for the state to have requested permission to amend this indictment during the trial, but it did not elect to do so and so we have a conviction which upon its face is wholly improper, and the court might properly have set the conviction aside on its own motion. In a recent case in this court decided at this very sitting, Griffin v. The State, the court held that it is the duty of the trial judge to protect the interest of a defendant. (Advance sheet So. Rep.)

Ross A. Collins, Attorney-General, for the state.

Since the appellant himself admits taking the cow, under certain circumstances, there remains only to consider the alleged error contained in the variance between the proof and the indictment in regard to the ownership of the cow. At the time she was stolen it is admitted that she was the property of Perry Young,...