Taylor v. State, 38540
| Citation | 58 So.2d 664,214 Miss. 263 |
| Decision Date | 12 May 1952 |
| Docket Number | No. 38540,38540 |
| Parties | TAYLOR v. STATE. |
| Court | United States State Supreme Court of Mississippi |
Stone & Stone, Coffeeville, for appellant.
J. P. Coleman, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.
The defendant was indicted, tried and convicted in the Circuit Court of the Second Judicial District of Yalobusha County for the crime of burglary, and was sentenced to imprisonment in the state penitentiary for a term of three years.
The indictment charged that the defendant 'did wilfully, unlawfully, feloniously and burglariously did break and enter a store building in the City of Water Valley, in said county and district, owned by W. W. Turnage and occupied at the time by J. A. Cooper, in which goods, wares, and merchandise were usually kept for sale, and did then and there wilfully, unlawfully, feloniously and burglariously take, steal and carry away' certain personal property, including watches and other jewelry therein described, 'and being the personal property then and there of J. A. Cooper.'
Only two points are argued on this appeal: (1) That there was a variance between the allegation of the indictment and the proof as to the ownership of the store building which was burglarized; and (2) that the indictment is fatally defective, in that it failed to allege that the breaking and entering was done with the intent to steal.
The indictment alleged that the store building was owned by W. W. Turnage and was occupied at the time of the burglary by J. A. Cooper. J. A. Cooper testified that Mrs. W. W. Turnage owned the building at the time of the trial. Cooper stated that he did not know exactly when Mrs. Turnage acquired title to the property from her husband. We do not think that this variance between the allegation of the indictment and the proof as to the ownership of the store building is of any importance or constitutes sufficient cause for the reversal of the judgment of the lower court. This Court has held in several cases that in an indictment for burglary the allegations as to the ownership of the title to the building constitute surplusage, and, insofar as the burglary is concerned, the occupant of the building at the time of the burglary is the owner, and no such particularization of description of the title to the building is required. Clinton v. State, 163 Miss. 435, 142 So. 17; Davis v. State, 173 Miss. 783, 163 So. 391.
The indictment in this case alleged that the store building was occupied at the time of the burglary by J. A. Cooper. The proof showed that Cooper was the tenant in possession of the property and that the merchandise stolen was the personal property of Cooper. That was sufficient proof of the ownership of the property. Whether Cooper's landlord was W. W. Turnage or his wife was immaterial.
The objection to the indictment on the ground that the indictment failed to allege an intent to steal presents a more serious question, and in our opinion the omission of an allegation of intent to steal constitutes a fatal defect in the indictment.
The indictment is clearly intended to charge the crime of burglary as defined in Section 2043, Code of 1942, which reads as follows: 'Burglary--elsewhere than in dwelling house.--Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, ship, steamboat, flatboat, or railroad car, in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering, in the day or night time, any building within the curtilage of a dwelling house, not jointed to, immediately connected with, or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven years.'
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