Opinion
No. 31699.
September 30, 1935.
1. LARCENY.
Indictment or affidavit for larceny must allege ownership of property stolen.
2. CRIMINAL LAW.
Where affidavit for petit larceny was void for failing to allege ownership of property stolen, defect could be availed of for first time on appeal.
APPEAL from circuit court of Alcorn county.
HON. THOS. H. JOHNSTON, Judge.
Oscar McGaha was convicted of petit larceny, and he appeals. Reversed and remanded.
Orma R. Smith, of Corinth, for appellant.
Ownership of the property stolen is an essential ingredient and element of the crime of larceny; the property must be the property of another.
Sec. 1010, Code of 1930; 17 R.C.L., p. 5, sec. 1, p. 22, sec. 25; 36 C.J., p. 734, sec. 1, p. 756, sec. 74; Unger v. State, 42 Miss. 642; Const. of the State of Miss., sec. 26.
Ownership of the property alleged to have been stolen is an essential ingredient and element of the crime of larceny and must be alleged in the affidavit or indictment; and if it is not, the affidavit or indictment is fatally defective, absolutely void and charges no offense whatsoever.
Wright v. State, 94 So. 716, 130 Miss. 603; 17 R.C.L., p. 60, sec. 66; 36 C.J., p. 828, sec. 307; Unger v. State, 42 Miss. 642; State v. Tatum, 96 Miss. 430, 50 So. 490; Jordan v. State, 87 Miss. 170, 39 So. 895; Hughes v. State, 74 Miss. 368, 20 So. 838; Reed v. State, 156 So. 650; Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; Pipin v. State, 126 Miss. 146, 88 So. 502; Woodward v. State, 130 Miss. 611, 94 So. 717; State of W. Va. v. Cutlip, L.R.A. 1916E, 783; Wallace v. Peoples, 63 Ill. 451, 88 A.L.R., p. 486, note.
The fact that the appellant failed to make any objection in the court below to this fatal defect in the affidavit does not preclude him from objecting in this court on appeal for the first time.
Secs. 1206, 1193, Code of 1930.
Where an affidavit absolutely charges no offense and is void the question may be raised upon appeal for the first time.
Reed v. State, 156 So. 650; Hughes v. State, 74 Miss. 368, 20 So. 838; Cook v. State, 72 Miss. 517, 17 So. 228; Herron v. State, 118 Miss. 429, 79 So. 289; Newcomb v. State, 37 Miss. 383; Jessee v. State, 28 Miss. 100; Pittman v. State, 107 Miss. 154, 65 So. 123.
W.D. Conn, Jr., assistant attorney-general, for the state.
Since the failure to allege ownership is not a formal defect, but one of substance, the statute does not preclude this matter from being raised after verdict.
Reed v. State, 171 Miss. 65, 156 So. 650.
In view of the holding of the court in the Reed case the state submits that this case should be similarly disposed of.
The appellant, Oscar McGaha, was convicted of petit larceny and sentenced to serve sixty days in jail upon an affidavit as follows: "Oscar J. McGaha did, on or about the third day of July, 1932, in said district, county and state, wilfully and unlawfully and feloniously steal and carry away one jersey color cow, weight about #500, known as the Louis Suitor cow calf — val. cow at $25.00. Against the peace and dignity," etc.
There was no demurrer to the affidavit and no motion in arrest of judgment, but an appeal has been taken, and it is contended that the affidavit is fatally defective, in that it fails to charge that the property stolen belonged to anyone, and no attempt is made to allege ownership of the property stolen.
In Hughes v. State, 74 Miss. 368, 20 So. 838, it was held that the failure to show ownership of the property stolen is a defect of substance and not form, and may be taken advantage of by motion in arrest of judgment as well as by demurrer before trial.
In Reed v. State, 171 Miss. 65, 156 So. 650, it was held that a fatal defect in an indictment or affidavit may be availed of on appeal for the first time.
It is necessary for an indictment or affidavit to allege ownership of the property stolen, that being the essence of the offense, and a conviction upon such an affidavit is void, and the defect may be availed of here for the first time.
The judgment of conviction will therefore be reversed, and the appellant will be held upon his appearance bond to await the action of the next grand jury of the county.
Reversed and remanded.