Wood v. State
| Decision Date | 04 November 1929 |
| Docket Number | 28159 |
| Citation | 124 So. 353,155 Miss. 298 |
| Court | Mississippi Supreme Court |
| Parties | WOOD v. STATE |
1 JURY. Motion to quash panel, on ground defendant was prejudiced by being put to trial on day following mistrial held properly overruled.
Where jury failed to agree in first trial and were discharged, and case was set for trial on following day, but only four jurors were present and available for second panel, and court drew twelve names from jury box, and second panel was completed from persons so drawn, defendant's motion to quash panel on ground he was prejudiced by being put to trial so soon after mistrial held properly overruled.
2. INDICTMENT AND INFORMATION. In burglary prosecution, amendment of indictment to show correct name of corporation owning hotel burglarized held permissible (Hemingway's Code 1927, section 1329).
Where indictment for burglary alleged hotel building burglarized was the property of "Agamando, Inc.," amendment alleging that hotel was owned by "Sajamada, Inc.," held permissible, under Code 1906, section 1508 (Hemingway's Code 1927, section 1329), since it did not change identity of offense.
3. BURGLARY. In burglary prosecution, evidence corporation owning hotel burglarized was known and acted as corporation was sufficient proof of corporate existence.
In burglary prosecution, evidence of director and secretary and treasurer of corporation owning hotel burglarized that corporation was known and acted as corporation held sufficient proof of its corporate existence.
4. BURGLARY. Where indictment charged burglary and theft of jewelry, evidence of defendant's possession of man's wrist watch, not referred to in indictment, held properly admitted.
Where indictment charged burglary and theft of lady's wrist watch and other valuable jewelry, evidence of defendant's possession of man's wrist watch, which had been stolen, held properly admitted, though such watch was not referred to in indictment.
5. BURGLARY. In burglary prosecution, giving of instruction jury could not convict defendant of larceny of man's watch, not referred to in indictment, held not error.
Where indictment charged burglary and theft of lady's wrist watch and other jewelry, but did not refer to man's watch, which evidence showed was stolen and was found in defendant's possession, giving of instruction for state that jury could not convict defendant of larceny of man's wrist watch held not error.
6. CRIMINAL LAW. Refusing instruction not to convict defendant of grand larceny held harmless, where he was convicted of burglary.
Refusing requested instruction not to convict defendant of grand larceny held harmless, where defendant was convicted of burglary, and not of larceny.
7. BURGLARY. In burglary and larceny prosecution, recent possession of stolen property may be considered by jury, and, in absence of reasonable explanation, jury may infer guilt therefrom.
In prosecution for burglary and larceny, recent possession of stolen property is circumstantance for jury's consideration, and, in absence of reasonable explanation of such possession by party in possession, jury may infer guilt therefrom.
8. CRIMINAL LAW. Under general verdict of guilty on indictment charging burglary and larceny, punishment must be for crime of burglary.
Under general verdict of guilty on indictment charging burglary and larceny, only one punishment can be imposed, and that must be for crime of burglary.
9. CRIMINAL LAW. Where verdict of guilty on indictment charging burglary and larceny was general, recital in judgment regarding crime of larceny held harmless, where punishment was within limit for burglary.
Where verdict of guilty on indictment charging burglary and larceny was general, fact that judgment recited, "Said defendant, H. W., for... his felony and crime of burglary and larceny aforesaid, be confined in the state penitentiary of the state of Mississippi for and during a term of ten years from this day," held harmless, since punishment was within limit permitted by statute for burglary.
APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.
Harry Wood was convicted of burglary, and he appeals. Affirmed.
Judgment affirmed.
Mize, Mize & Thompson, of Gulfport, for appellant.
It is a well sustained rule in this state that when the jury brings in a verdict of "guilty as charged" it will be regarded as a conviction of burglarly alone.
Roberts v. State, 54 Miss. 421; Dees v. State, 89 Miss. 754, 42 So. 605.
Permitting the indictment to be amended so as to change the word "Agamando" to "Sajamada" was erroneous.
James v. State, 77 Miss. 370; Brown v. State, 81 Miss. 143, 33 So. 170; House v. State, 121 Miss. 43, 83 So. 337; Wright v. State, 130 Miss. 603, 94 So. 716; State v. Ellis, 102 Miss. 541, 59 So. 841; Lewis v. State, 85 Miss. 35, 37 So. 497; House v. State, 74 Miss. 368, 20 So. 838; McDonald v. State, 68 Miss. 348, 8 So. 508.
The giving of the following instruction for the state was error: "The court instructs the jury at the instance of the state that recent possession of stolen property, if such recent possession there be, is a circumstance for the jury's consideration, and in the absence of a reasonable explanation of such possession by the party in possession of such property, the jury may infer guilt therefrom.
Patterson v. State, 144 Miss. 410, 110, So. 208.
W. A. Shipman, Assistant Attorney-General, for the state.
As to a variance between the verdict and judgment, only those errors which deprive an accused of some substantial right are to be held reversible errors.
Thomas v. State, 117 Miss. 535, 78 So. 147; Dick v. State, 53 Miss. 384; Kelly v. State, 3 S. & M. 518; Brown v. State, 72 Miss. 590, 18 So. 431; Roberts v. State, 55 Miss. 421; Smith v. State, 57 Miss. 823; Harris v. State, 61 Miss. 306; Dees v. State, 89 Miss. 754, 42 So. 605; Brown v. State, 103 Miss. 664, 60 So. 727; James v. State, 77 Miss. 370.
The amendment of indictment by changing name of hotel burglarized, where identity of offense was not changed, was proper. Secs. 1329 and 1330, Hemingway's 1927 Code (Secs. 1508 and 1509, Code of 1906).
Haywood v. State, 47 Miss. 1; Garvin v. State, 52 Miss. 207; Miller v. State, 68, Miss. 225, 8 So. 273; Knight v. State, 64 Miss. 802, 2 So. 252; Mackguire v. State, 91 Miss. 151, 44 So. 802.
It was not necessary to prove that owner of burglarized hotel was a corporation de jure. Proof of de facto existence was sufficient.
Underhill's Criminal Evidence, Sec. 294; Commonwealth v. Whitman, 121 Mass. 361; State v. Hopkins, 56 Vt. 260; James case, 77 Miss. 370; 2 Bish. New Cr. Prac., Secs. 137, 138; Johnson v. State, 73 Ala. 486; Berry v. State, 92 Ga. 47, 17 S.E. 1006; Morton v. State, 74 Ind. 338; Davis v. State, 108 Miss. 710, 67 So. 178.
Appellant's motion to quash the jury panel was properly overruled.
Sec. 2712, Code of 1906, Sec. 2359, Hemingway's 1927 Code; Sec. 1494, Code of 1906, Sec. 1315, Hemingway's Code 1927; Sec. 784, Code 1906, Sec. 581, Hemingway's 1927 Code; Lamar v. State, 63 Miss. 265; Weir v. State, 133 Miss. 873, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Solomon v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Williams v. State, 92 Miss. 70, 45 So. 146.
It was not error for the court to instruct the jury that they could not convict the appellant of stealing the Longerine man's wrist watch.
Wesley v. State, 37 Miss. 327; Mack v. State, 36 Miss. 77; Head v. State, 44 Miss. 731; Memphis, etc., Railroad Co. v. Whitfield, 44 Miss. 466; Turnage v. State, 1 Miss. Dec. 532; Rodgers v. State, 21 So. 130; Hampton v. State, 132 Miss. 154, 96 So. 165; Smith v. State, 128 Miss. 258, 90 So. 883; Crawford v. State, 146, Miss. 258, 112 So. 681.
The granting of the following instruction was correct: "The court instructs the jury at the instance of the state that recent possession of stolen property, if such recent possession there be, is a circumstance for the jury's consideration, and in the absence of a reasonable explanation of such possession by the party in possession of such property, the jury may infer guilt therefrom."
Foster v. State, 52 Miss. 695.
The refusal of the following instruction was proper:
"The court instructs the jury for the defendant that you cannot convict him of grand larceny."
Flowers v. State, 101 Miss. 108, 57 So. 226; Calicoat v. State, 131 Miss. 169, 95 So. 318.
This is an appeal from a conviction of burglary. The indictment alleges the burglary and theft of a lot of valuable jewelry, including a lady's wrist watch. Shortly thereafter this watch, and also a gentleman's wrist watch, not referred to in the indictment, but which was among the articles stolen, were found in the appellant's possession; he then stating that he purchased them from a traveler, whose name and present whereabouts he did not disclose.
The case was tried twice. In the first trial the jury failed to agree and were discharged, and the case was then set for trial on the following day. Only one jury had been impannelled for that week, and only four jurors were present and available for the second panel. The court drew twelve names from the jury box, ordered the sheriff to summon them for the next day, and the second panel was then completed from the persons so drawn and summoned. When the case was called for the second trial, the appellant filed a motion to quash the panel, alleging, among other things, that he was prejudiced by being put to trial so soon after the mistrial on the preceding day. No reason appears why he should be so prejudiced, or why the case should be postponed to a later day. The motion to quash was overruled, and the...
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