Woods v. State

• Decision Date: 09 October 1939
• Docket Number: 33695
• Citation: 191 So. 283,186 Miss. 463
• Court: Mississippi Supreme Court
• Parties: WOODS v. STATE

191 So. 283

186 Miss. 463

WOODS v. STATE

No. 33695

Supreme Court of Mississippi, Division A

October 9, 1939

APPEAL from the circuit court of Prentiss county HON. CLAUDE F CLAYTON, Judge.

Dave Woods was convicted of the burglary of a dwelling house, and he appeals. Reversed and remanded.

Reversed and remanded.

G. C Moreland, of Corinth, for appellant.

It is our contention that the allegations of the indictment were not sustained by the proof and that the motion to exclude the evidence and direct a verdict of "Not Guilty" should have been sustained at the close of the state's testimony, and the charge to find the defendant "Not Guilty" should have been given.

We call the court's attention to the fact that the indictment was evidently drawn under Section 812, Code of 1930, being the dwelling house general statute. We contend that the state not only failed to prove that the house burglarized was a dwelling house but on the contrary, the proof shows absolutely, clearly, and without contradiction that the house burglarized had never been occupied as a residence by Mr Cook or by anyone else, and that it was not a dwelling house at the time of the burglary nor had it ever been a dwelling house.

Scott v. State, 62 Miss. 781; Draughn v. State, 76 Miss. 574; Haynes v. State, 177 So. 360; State v. Stringer, 105 Miss. 860; 3 Words and Phrases, pp. 2285-2295; Black's Law Dictionary, Page 430.

We contend that the verdict of the jury was contrary to the law and evidence first because there was a fatal variance between the allegation of the indictment and the proof; second, because the testimony was not sufficient to sustain the verdict.

While the recent possession of stolen property is a circumstance which may be considered and from which, in the absence of a reasonable explanation, the jury may infer guilt, yet the law does not raise a presumption of guilt from such possession.

Harper v. State, 71 Miss. 202.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

An alleged variance between an indictment and the proof cannot be raised in the Supreme Court for the first time.

Hoskins v. State, 106 Miss. 368, 63 So. 671; Thomas v. State, 103 Miss. 800, 60 So. 781; Hall v. State, 166 Miss. 331, 148 So. 793; Horn v. State, 147 So. 310, 165 Miss. 169; Hale v. State (Miss.), 176. So. 603.

The circumstantial evidence produced by the state was sufficient to convict of burglary, particularly where the defendant put forth a "man in the moon" defense, together with the fact that the defendant gave more than one version of how he came into the possession of the stolen property.

Millette v. State, 167 Miss. 172, 148 So. 788; Wylie v. State, 129 Miss. 196, 91 So. 906.

OPINION

Griffith, J.

Appellant was indicted and convicted under the charge of the burglary of a dwelling house. The undisputed proof showed that the house in question, although intended for a dwelling house, had been only recently erected and had not yet been occupied as a dwelling. It was vacant.

Appellant relies on Haynes v. State, 180 Miss. 291, 177 So. 360, wherein the court held that a house from which the occupants had permanently removed on the day before the night of the burglary was not a dwelling at the time of the commission of the alleged crime; and that proof of the burglary of such a house would not sustain the conviction under an indictment charging the burglary of a dwelling. Appellant submits that if a house from which the occupants have permanently removed is not a dwelling house within the statutes on burglary, then, upon the same reasoning, a house into which no dwellers have ever yet moved is not a dwelling house; and in this contention appellant is clearly correct.

The State suggests that appellant did not specifically raise this point in the trial court, and that, therefore, he cannot for the first time raise it here. This contention overlooks the fact that appellant requested and was refused a peremptory instruction. This is precisely the manner or procedure by which the point was raised, and was sustained, in Haynes v. State, supra, and it was adequate to that end in such a case.

The request for a peremptory instruction takes the place of a d...