Winston v. State, 56054

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before PATTERSON; ROBERTSON; PATTERSON
• Citation: 479 So.2d 1093
• Parties: Robert WINSTON v. STATE of Mississippi.
• Docket Number: No. 56054,56054
• Decision Date: 30 October 1985

Page 1093

479 So.2d 1093 Robert WINSTON
v.
STATE of Mississippi. No. 56054. Supreme Court of Mississippi. Oct. 30, 1985.
Rehearing Denied Dec. 4, 1985.

William E. Andrews, Jr., Purvis, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal follows the conviction of Robert Winston in the Circuit Court of Lamar County, Mississippi, on the charge of burglary of an inhabited dwelling, Miss.Code Ann. Sec. 97-17-21 (1972), upon which he has been sentenced to twelve (12) years imprisonment.

On appeal, Winston contends that the lower court erred:

(1) in overruling his motion of quash the indictment;

(2) in overruling his motion for a directed verdict at the conclusion of the State's case in chief and his subsequent motion for

Page 1094

judgment of acquittal notwithstanding the verdict of the jury, and

(3) in refusing to grant his alternative post-trial motion for a new trial made on grounds that the jury verdict was against the weight of the evidence.

We have considered each assignment of error with care and have studied and reviewed the course of proceedings in the trial court. Having done so, we find no error and affirm.

II.

Joanna Showers in March of 1984 was an 84 year old semi-invalid widow who lived alone in her home in a housing project in Lumberton, Mississippi. She had retired early on the evening of March 3, 1984, thinking nothing was amiss. At approximately 11:00 p.m. on that evening Showers was awakened by Robert Winston as he was "coming out from under her bed". Winston had no permission to be in Showers' home, much less under her bed.

Prior to the night in question, Joanna Showers had lost the keys to her home. Winston's sister, Carolyn, later advised her that she had given the keys to Robert Winston.

The screen door on Showers' house was in good condition prior to March 3. Upon investigation thereafter, law enforcement officers determined that the screen had been cut in a manner adequate to allow one to open the screen door and then gain entrance to the house with keys.

Winston was formally charged with the burglary of an inhabited dwelling in an indictment returned on June 6, 1984, by the Lamar County Grand Jury. The matter was called for trial in circuit court on June 20, 1984. At the conclusion of the State's case in chief, Winston moved the court for direction of a verdict of acquittal. The motion was denied. Alternatively, Winston moved that the jury be instructed to find him guilty of malicious trespass only. That motion also was denied. At that time Winston rested without offering any evidence. In due course thereafter, the jury returned a verdict of guilty as charged. The 25 year old Winston was thereupon sentenced to twelve years imprisonment. ¹

On June 5, 1984, Winston filed a motion for judgment of acquittal notwithstanding the verdict of the jury or, in the alternative, for a new trial. On the same day, the trial judge overruled and denied these alternative post-trial motions. This appeal has followed.

III.

Winston charges that the trial court erred in overruling his motion to quash the indictment. The indictment charges that Winston broke and entered Showers' home with intent to steal her personal property. Winston's point is that the indictment does not describe with specificity the item or items Winston intended to steal once inside Showers' home.

The indictment, in pertinent part, charges that:

On the 3rd day of March, A.D., 1984, Robert Winston did wilfully, unlawfully, feloniously, and burglariously break and enter a certain dwelling house, property of Joanna Showers, in which house at the time thereof, that Joanna Showers, a human being, was situated therein, and the said defendant did wilfully, unlawfully, feloniously and burglariously break and enter the said dwelling house with the felonious intent of him, the said defendant, to commit a crime therein, to-wit: to take, steal and carry away the personal property of value of the said Joanna Showers, therein being stored and kept for use, contrary to and in violation of Sec. 97-17-21 of the Mississippi Code of

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1972, as amended, against the peace and dignity of the State of Mississippi.

Winston correctly notes that the crime of burglary has two essential elements, the unlawful breaking and entering and the intent to commit some crime once entry has been gained. Moore v. State, 344 So.2d 731, 735 (Miss.1977); Thames v. State, 221 Miss. 573, 577, 73 So.2d 134, 136 (1954); Brumfield v. State, 206 Miss. 506, 507, 40 So.2d 268 (1949). He claims the indictment here inadequate in charging the second element--the intent to commit a crime therein--in that he was not told what specific item of personal property he is charged with intending to steal. To be sure, the indictment does charge generally Winston's intent "to take, steal and carry away the personal property of the said Joanna Showers, ...." Winston overlooks the fact that it is his intent to commit some crime rather than his actual commission of it which is the matter to be charged.

A matter such as this regarding the legal sufficiency of the indictment turns on the face of the indictment, without regard to the proof that may have followed at trial. Still a brief look at the evidence in this case makes clear just how specious Winston's point is. Winston was unsuccessful in stealing anything. In such cases it may often be difficult, if not impossible, to specify a particular item which was...