Opinion
No. 55906.
October 2, 1985.
Appeal from Circuit Court, Warren County, Rush M. Clements, J.
David M. Sessums, Varner, Parker Sessums, Mark W. Prewitt, Prewitt Courteau, Vicksburg, for appellants.
Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
Lester Pettway and David Melton were indicted and convicted of burglary of a dwelling house. They bring this appeal from the decision of the Circuit Court of Warren County.
It is uncontradicted in the record that the house in question was under construction and had never been occupied. Since no one had ever lived in it, the house had never become and was not a dwelling house within the statute defining burglary of a dwelling house. Watson v. State, 254 Miss. 82, 179 So.2d 826 (1965); Woods v. State, 186 Miss. 463, 191 So. 283 (1939).
The appellants' motion for a directed verdict at the conclusion of the state's case in chief and request for a peremptory instruction at the conclusion of all the evidence, both of which were denied by the trial court, should have been granted.
REVERSED AND APPELLANTS DISCHARGED.
PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.