Opinion
No. 39231.
October 4, 1954.
1. Criminal law — witnesses — refusal to put Sheriff under rule — trial court's discretion.
Trial court's refusal to put Sheriff, who testified for State, under the rule was within its discretion, and would not be disturbed in absence of an abuse of discretion resulting in prejudice to the defendant.
2. Burglary — elements of.
Burglary consists of two elements, the burglarious breaking and entering the house or building, and the felonious intent to steal therein, or to commit a felony. Sec. 2043, Code 1942.
3. Burglary — indictment — allegation as to value of property stolen — unnecessary.
Under burglary statute, it is not necessary to allege in indictment the value of the property stolen. Sec. 2043, Code 1942.
4. Burglary — entry of building — with intent to steal something of value.
In prosecution for burglary, conviction could be had on showing that defendant had entered a building with intent to steal something of value, and a showing that the object to be stolen was worth at least $25 was not necessary. Sec. 2043, Code 1942.
5. Burglary — evidence — sustained conviction.
In such case, evidence was sufficient to support finding that defendant had entered building with intent to steal something of value, and there was no fatal variance between the indictment and proof.
6. Criminal law — entrapment — evidence failed to sustain.
Evidence was sufficient to support finding adverse to defendant's claim that he had been entrapped.
7. Burglary — evidence — in custodia legis — subject of larceny.
Bottle of wine, which had been seized by Sheriff as evidence and which was in his lawful custody pending outcome of trial on charge of unlawful possession of liquor, was the subject of larceny by defendant, and he could be convicted of burglary upon showing that he broke into courthouse with intent to remove the bottle. Sec. 2043, Code 1942.
8. Witnesses — adverse witness — cross-examination as hostile witness — refusal not error.
Under facts and circumstances of case, refusal of trial court to permit defendant to call an adverse witness as a hostile witness and propound leading questions to him and cross-examine him as a hostile witness was not error.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Amite County; JAMES A. TORREY, Judge.
F.W. Stratton, Liberty, for appellant.
I. The Court erred in not putting the Sheriff under the rule and in allowing him to be called as a witness out of time. Graham v. State, 195 Miss. 291, 15 So.2d 478; 23 C.J.S. pp. 382-3; Hutton's Summary Statement of the Law of Evidence in Miss. (2d ed.), p. 475.
II. The Court erred in not directing the jury to return a verdict in favor of the defendant for the following reasons:
A. There was no intent to commit a crime shown by the State on the part of the defendant that would subject defendant to a crime more severe than a misdemeanor, to-wit, petit larceny. Brumfield v. State, 206 Miss. 506, 40 So.2d 268; State v. Buchanan, 74 Miss. 349, 22 So. 875; Secs. 677, 2242, Code 1942.
B. If there was any intent to commit a crime it was placed in the mind of the defendant by Lonnie Banks, or Lonnie Banks and the Sheriff of Amite County working in concert.
C. There is a fatal variance between the indictment and the proof as there was no proof of intent to steal or commit a felony.
D. The Court erred in that it did not allow the defense to use leading question and otherwise interrogate an obviously hostile witness. A.L.I., Model Code of Evidence, p. 102.
III. The Court erred in not directing a verdict in favor of the defendant as the jury verdict was against the great weight of the evidence.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. It was within the sound discretion of the trial court to permit the Sheriff, as an officer of the Court, to remain in the courtroom and testify after the rule was invoked, and the trial court did not abuse such discretion. Gillespie v. State, 215 Miss. 380, 61 So.2d 150; Graham v. State, 195 Miss. 291, 15 So.2d 478; Sartorious v. State, 24 Miss. 602; Sec. 4240, Code 1942.
II. Guilt or innocence of accused is for jury to determine under proper instructions, and trial court correctly refused to direct the jury to find the defendant not guilty.
III. Appellant was convicted of burglary, a crime denounced by the provisions of Section 2043, Mississippi Code of 1942. Under that section, this Court has held that the essentials or elements of burglary are: (1) a breaking and entering the building, and (2) with intent to steal therein or to commit a felony. Gross v. State, 191 Miss. 383, 2 So.2d 818.
IV. Appellant apparently argues that it is necessary in order to convict appellant that it be shown that he intended to commit a crime in the building more serious than a misdemeanor. Such is not the case. Section 2043, Mississippi Code of 1942, provides that, "Every person who shall be convicted of breaking and entering * * * with intent to steal therein, or to commit any felony * * *." It is readily seen that the statute does not require that it be proven that the appellant intended to commit grand larceny, as distinguished from petit larceny. Intent to steal is sufficient. The value of the property which he intended to steal is immaterial, under the statute and decisions of this Court. Bone v. State, 207 Miss. 868, 43 So.2d 571; Lewis v. State, 212 Miss. 775, 55 So.2d 475.
V. Appellant further contends that any intent of the appellant to commit the crime of burglary was placed in his mind by Lonnie Banks and the Sheriff working together. In all fairness, it cannot be said that the appellant developed any proof whatever tending to show entrapment on the part of the Sheriff of Amite County.
VI. Appellant also contends that there was a fatal variance between the indictment and proof, as there was no proof of intent to steal, as the appellant contends that the property which he intended to steal was his own. However, there is no doubt but that the property was rightfully in the possession of the Sheriff in that the same was evidence for use in a pending case. The Sheriff had such property right and right of possession in the wine in order that the same might be the proper subject of larceny. In addition, Section 2618, Mississippi Code of 1942, declares the rule to be that no property right shall exist in any person in intoxicating liquor. Therefore, under the provisions of said section, the appellant had no property right in the wine. The possession by the Sheriff of the wine, as evidence in a pending proceeding, was lawful, and in a burglary proceeding will be treated as property. Crane v. State, 157 Miss. 548, 128 So. 579.
VII. Appellant called as his first witness upon his behalf one Lonnie Banks, a prisoner in the Amite County Jail. Appellant complains that the Court committed error in not permitting him to treat such witness as a hostile witness and ask leading questions. The allowance of leading questions is within the sound discretion of the trial court, and it is not an abuse of such discretion for the trial court to deny the use of such leading questions in the examination by the defendant of a witness called by the defendant, in the absence of surprise. There was no showing whatever that the defendant was surprised by the testimony of the witness Banks; in fact, the record indicates that the defendant well knew at the outset what the testimony of Banks would show. Bove v. State, 185 Miss. 547, 188 So. 557.
VIII. There was ample competent evidence before the jury to sustain the conviction of appellant.
The appellant was convicted in the Circuit Court of Amite County on an indictment charging him with the crime of burglary, and was sentenced to serve a term of seven years in the State penitentiary. From this judgment of conviction he prosecutes this appeal.
The indictment was drawn under Section 2043 of the Mississippi Code of 1942, which provides in its pertinent parts as follows: "Every person who shall be convicted of breaking and entering in the day or night any shop, store . . . or other building . . . 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, . . . shall be guilty of burglary, and imprisoned in the state penitentiary not more than seven years."
The State's proof showed substantially the following: On October 13, 1953, appellant was in jail in Amite County, held on a charge of the unlawful possession of liquor, in that he was charged with unlawfully having in his possession a bottle of wine, which the sheriff had seized and was holding in his office for evidence. On the afternoon of that day, the appellant was released on bond. Later that night, the sheriff received an anonymous telephone call informing him that he had better check the courthouse, that something might happen there. The sheriff requested the Town Marshal of Liberty to accompany him, and together they went to the courthouse. The marshal concealed himself in the sheriff's office and the sheriff waited on the outside. Shortly thereafter the appellant appeared on the scene and entered the courthouse. He tried the door of the sheriff's office, and failing to gain entrance there, he came out and after peering in several windows, he tore the screen and broke the glass of one of the windows in the sheriff's office and entered the office. The marshal fired his pistol and turned on the light and discovered the appellant with a Coca-Cola bottle which the appellant dropped on the floor. The appellant then jumped through the window and fled. The Coca-Cola bottle contained gasoline, and a wine bottle with gasoline in it was found on the ground outside of the window. Among other things of value which the sheriff had in his office at the time of its entry by the appellant were from $1,000 to $1,500, representing collections on the sale of automobile tags, a number of guns, and a quantity of contraband liquor. The officers apprehended the appellant about 3:30 o'clock in the morning and arrested him and his prosecution on the charge of burglary followed.
The appellant admitted breaking into the sheriff's office, but testified that his purpose in so doing was to take the bottle of wine and substitute gasoline for the contents thereof and thus destroy the evidence against him on the liquor charge, and that he had been instigated, lured, and induced to do the same by Lonnie Banks, a trusty in the jail, who was acting in concert with the sheriff.
(Hn 1) It is first assigned as error that the trial court erred in refusing the request of the appellant made at the outset of the trial to have the sheriff, a witness for the State, placed under the rule. The sheriff was called as the first witness for the State and was examined as to the facts within his knowledge. He was recalled during the course of the introduction of the State's proof. The action of the court in declining the appellant's request was with respect to a matter wholly within the discretion of the court and should not be disturbed in the absence of a showing that the court manifestly abused his discretion. Graham v. State, 195 Miss. 291, 15 So.2d 478; Sartorious v. State, 24 Miss. 602. We are of the opinion that there was no abuse of the court's discretion resulting in prejudice to the appellant, and we are therefore not warranted in interfering with the court's action.
The appellant next contends that the court erred in denying his request for a directed verdict for the reason, first, that the proof is insufficient to show that the appellant entered the building with the felonious intent to steal property of a greater value than $25, and, second, that there is a fatal variance between the indictment and the proof as to the element of intent in that the indictment charges a felonious intent to steal and the proof shows an intent to take the bottle of wine, which was manifestly of a value less than $25, and, third, that the appellant was entrapped into the commission of the offense.
We are of the opinion that none of the grounds urged by the appellant are sufficient to warrant the granting of the requested directed verdict. (Hn 2) The crime of burglary consists of two elements, namely: (1) the burglarious breaking and entering the house or building, and (2) the felonious intent to steal therein or commit a felony. State v. Buchanan, 75 Miss. 349, 22 So. 875; Gross v. State, 191 Miss. 383, 2 So.2d 818. (Hn 3) It is not necessary under the statute to allege in the indictment the value of the property to be stolen. Bone v. State, 207 Miss. 868, 43 So.2d 571; Lewis v. State, 212 Miss. 775, 55 So.2d 475. (Hn 4) It is, therefore, immaterial that the value of the property which the appellant intended to steal in burglariously breaking and entering the building was of less value than $25. (Hn 5) It is manifest from the evidence that the appellant entered the building with the intent to steal something of value, and the jury was amply warranted in so inferring and finding from the evidence. Nichols v. State, 207 Miss. 291, 42 So.2d 201. We accordingly find no insufficiency in the proof as to the element of intent and no fatal variance between the indictment and proof.
(Hn 6) Appellant urges, however, that he was instigated, induced, and lured into the commission of the crime by Lonnie Banks, acting in concert with the sheriff, and he seeks, therefore, to avail himself of the defense of entrapment. A sufficient answer to this argument is that appellant's testimony in this regard was contradicted by the sheriff and Banks, and the issue thus raised was for the determination of the jury. The jury determined the issue adversely to the appellant and was amply justified in so doing.
(Hn 7) The appellant further contends that the bottle of wine which he expected to take when he entered the building was his own property and that he was merely intending to retrieve it and that he cannot be held guilty of an intent to steal that which was his. We are unable to agree with this contention under the facts of this case. The proof shows that the bottle of wine had been seized by the sheriff and was in his lawful custody pending the outcome of the trial on a charge of the unlawful possession of liquor, and the sheriff was vested with a special right thereto. It was, therefore, the subject of larceny by the appellant. In 32 Am. Jur., p. 955, it is said: "If personal property in the possession of a person other than the general owner by virtue of some special right or title is taken from him by the general owner, the taking constitutes larceny if it is done with the felonious intent of depriving such person of his rights."
(Hn 8) Finally, the appellant complains that the trial court erred in refusing to permit him to call Lonnie Banks as a hostile witness and propound leading questions to him and cross-examine him as a hostile witness. This was, of course, a matter for the exercise of the court's discretion. We find no abuse of this discretion and, in fact, we find no justification in the record in support of appellant's claim that Banks was a hostile witness. He was an adverse witness but the facts do not place him in the category of a hostile witness.
After a careful consideration of this case, we are of the opinion that the verdict of the jury is amply supported by the evidence and that the record is free from reversible error. The judgment of conviction is therefore affirmed.
Affirmed.
Roberds, P.J., and Hall, Lee and Ethridge, JJ., concur.