Yates v. State

• Decision Date: 06 May 1935
• Docket Number: 31754
• Citation: 172 Miss. 581,161 So. 147
• Court: Mississippi Supreme Court
• Parties: YATES v. STATE

161 So. 147

172 Miss. 581

YATES v. STATE

No. 31754

Supreme Court of Mississippi

May 6, 1935

Division B

Suggestion Of Error Overruled May 20, 1935.

APPEAL from circuit court of Jefferson Davis county, HON. HARVEY MCGEHEE, Judge.

Robert Yates was convicted of an offense, and he appeals. Affirmed.

Affirmed.

Martin & Beery, of Prentiss, for appellant.

It is essential to allege that house burglarized is in county where crime is laid.

Clinton v. State, 163 Miss. 435, 142 So. 17.

At common law it was required that an indictment for burglary should not only state the county in which the offense was committed, but also state the particular parish, vill, hamlet or other place within the county in which the premises were located.

9 C J., sec. 76, page 1042; State v. Reid, 20 Iowa 413; Bishop Crim. Procedure, sec. 135; Crane v. State, 157 Miss. 548, 128 So. 579; Moseley v. State, 92 Miss. 250, 45 So. 833; Franklin v. State, 167 Miss. 195, 148 So. 180.

The indictment does not charge larceny at all. It may be argued that it is not necessary that it do so, since the indictment allegedly charges an intent to steal. We say that this argument, if made, is erroneous, for the allegation of intent without alleging some overt act demonstrating intent renders the alleged burglary no more than a mere trespass, breaking and entering.

Roberts v. State, 55 Miss. 421.

We understand that indictments do not necessarily have to conform to strict rules of grammar, and we are not invoking any such strict doctrine, for we lay no claim to be any grammarian, but we do think that Section 26 of the Constitution requires indictments to conform to a fair degree of accurate statement of thought expressed in ordinary language.

Hall v. State, 91 Miss. 216, 44 So. 826.

The corpus delicti in burglary consists of two elements: (a) the breaking in; (b) the intention of committing a crime. Granting that the proof shows an unlawful breaking, it certainly does not show, aliunde the confession alleged, any intent to commit a crime and besides we think we have shown that no intent was properly charged in the indictment and the proof could riot rise higher than the charge.

A defendant cannot be convicted on a confession alone.

Sykes v. State, 157 Miss. 600, 128 So. 753; Butler v. State, 129 Miss. 778, 93 So. 3; Williams v. State, 129 Miss. 469, 92 So. 584; Miller v. State, 129 Miss. 774, 93 So. 2; Bridges v. State, 86 Miss. 377.

There is no proof, aliunde the confession, that Yates was ever at the cottonhouse; and no identification of the seed was attempted to be proved.

Jackson v. State, 118 Miss. 602, 79 So. 809.

We submit that the second instruction was most harmful to appellant in that no warning was given us in the beginning of the trial that any connection with Ransom Jones would be submitted in an instruction to the jury so that we could have qualified the jury as to its state of mind toward Ransom Jones. The defendant did not use Ransom Jones and looked upon him as hostile and neither did the state use Jones.

Mitchell v. State, 156 So. 654.

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

The indictment, as will be seen by reference thereto, charges that the named parties "in said county and state" etc. "did" etc. "break and enter" a certain building (describing it as the "property of Carl Bridges"). If these parties broke into and entered this building, and the act was done in "said county and state," the building could have been nowhere else but in "said county and state" (Jefferson Davis County, Mississippi).

State v. Ingram, 166 Miss. 543, 146. So. 638.

Proof aliunde the confession need only to go so far as to show that a real, rather than an imaginary crime has been committed.

Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Whittaker v. State, 169 Miss. 517; Perkins v. State, 160 Miss. 720, 135 So. 357; Garner v. State, 132 Miss. 815, 96 So. 743; Nichols v. State, 165 Miss. 114, 145 So. 903.

Criminal agency may be shown by the confession alone.

Crabb v. State, 152 Miss. 602, 120 So. 569; Roberts v. State, 153 Miss. 622, 121 So. 279; Gipson v. State, 162 Miss. 480, 139 So. 868; Smith v. State, 166 Miss. 893, 144 So. 471.

It is said that the confession was incompetent as evidence, because there was no warning to the defendant of his constitutional right to remain silent and that anything said by him might be used against him. This was not a judicial confession, and, therefore, no warning was necessary.

Nichols v. State, 164 Miss. 114, 145 So. 903; Watson v. State, 166 Miss. 194, 146 So. 122.

The first instruction correctly defines an accomplice and lays down a correct rule of law.

Dedeaux v. State, 125 Miss. 327, 87 So. 664; Stribling v. State, 124 Miss. 41, 86 So. 897; Anderson v. State, decided by this court in October, 1934, citing Cody v. State, 167 Miss. 150, 148 So. 627; Clark v. State, 113 Miss. 201, 74 So. 127; McCoy v. State, 91 Miss. 257, 44 So. 814; Harper v. State, 83 Miss. 402, 35 So. 572.

Argued orally by G. L. Martin and O. L. Berry, for appellant.

OPINION

Ethridge, P. J.

Robert Yates was indicted with Ransom Jones for burglary and larceny, and was tried and convicted and sentenced by the circuit court of Jefferson Davis county to serve seven years in the state penitentiary, from which Yates appeals to this court.

The proof of the state showed that a cotton house owned by Carl Bridges, in which was stored about one thousand two hundred pounds of cotton seed, was burglarized in December, 1934, and the seed was carried away and sold to a dealer at Magee, Miss. The value of the alleged stolen seed was placed at thirty dollars. It is shown by state witnesses that the cotton house or pen was locked with a staple lock, which had been broken, and the cotton seed, except for a very small portion, had been taken away. On learning of this burglary, an investigation began, and, the appellant having heard thereof, and also having heard some rumor of his connection therewith, went to a constable of the district and asked to be taken to jail, which was done by the constable and another. He requested them to go to see Carl Bridges, the owner of the seed house, and state to him that the appellant was the person who "had done him wrong," and that he (the appellant) was ready to pay off. There was no promise or threat or anything to show that the appellant was not voluntarily making this statement. On the contrary, the parties testified that it was voluntarily made. The statement was communicated to Bridges, and he went to the county jail, where the appellant made the same statement, and asked what it would take to satisfy Bridges, who stated that, so far as he was concerned, he would be satisfied with fifty dollars. The appellant made a statement as to how it occurred, saying that he and one Jones secured some other cotton seed, and that Jones broke the lock on Bridges' cotton house, and they took seed therefrom and loaded it into a truck owned by the appellant with such other seed, and carried it all to Magee, where early Saturday morning it was sold to a dealer at that point. This buyer testified that there was some one thousand six hundred odd pounds, and it was said to be worth forty-four dollars per ton, and this dealer paid Bridges for the seed.

There was a severance, and the appellant was tried...