Summary
In Wood v. State, 155 Miss. 298, 304, 124 So. 353, 354-55 (1929), this Court held that an indictment amended during trial to reflect the proper corporate name of the victim of a burglary was proper.
Summary of this case from Evans v. StateOpinion
No. 28159.
November 4, 1929.
1. JURY. Motion to quash panel, on ground defendant was prejudiced by being put to trial on day following mistrial, held properly overruled.
Where jury failed to agree in first trial and were discharged, and case was set for trial on following day, but only four jurors were present and available for second panel, and court drew twelve names from jury box, and second panel was completed from persons so drawn, defendant's motion to quash panel, on ground he was prejudiced by being put to trial so soon after mistrial, held properly overruled.
2. INDICTMENT AND INFORMATION. In burglary prosecution, amendment of indictment to show correct name of corporation owning hotel burglarized held permissible ( Hemingway's Code 1927, section 1329).
Where indictment for burglary alleged hotel building burglarized was the property of "Agamando, Inc.," amendment alleging that hotel was owned by "Sajamada, Inc.," held permissible, under Code 1906, section 1508 (Hemingway's Code 1927, section 1329), since it did not change identity of offense.
3. BURGLARY. In burglary prosecution, evidence corporation owning hotel burglarized was known and acted as corporation was sufficient proof of corporate existence.
In burglary prosecution, evidence of director and secretary and treasurer of corporation owning hotel burglarized that corporation was known and acted as corporation held sufficient proof of its corporate existence.
4. BURGLARY. Where indictment charged burglary and theft of jewelry, evidence of defendant's possession of man's wrist watch, not referred to in indictment, held properly admitted.
Where indictment charged burglary and theft of lady's wrist watch and other valuable jewelry, evidence of defendant's possession of man's wrist watch, which had been stolen, held properly admitted, though such watch was not referred to in indictment.
5. BURGLARY. In burglary prosecution, giving of instruction jury could not convict defendant of larceny of man's watch, not referred to in indictment, held not error.
Where indictment charged burglary and theft of lady's wrist watch and other jewelry, but did not refer to man's watch, which evidence showed was stolen and was found in defendant's possession, giving of instruction for state that jury could not convict defendant of larceny of man's wrist watch held not error.
6. CRIMINAL LAW. Refusing instruction not to convict defendant of grand larceny held harmless, where he was convicted of burglary.
Refusing requested instruction not to convict defendant of grand larceny held harmless, where defendant was convicted of burglary, and not of larceny.
7. BURGLARY. In burglary and larceny prosecution, recent possession of stolen property may be considered by jury, and, in absence of reasonable explanation, jury may infer guilt therefrom.
In prosecution for burglary and larceny, recent possession of stolen property is circumstantance for jury's consideration, and, in absence of reasonable explanation of such possession by party in possession, jury may infer guilt therefrom.
8. CRIMINAL LAW. Under general verdict of guilty on indictment charging burglary and larceny, punishment must be for crime of burglary.
Under general verdict of guilty on indictment charging burglary and larceny, only one punishment can be imposed, and that must be for crime of burglary.
9. CRIMINAL LAW. Where verdict of guilty on indictment charging burglary and larceny was general, recital in judgment regarding crime of larceny held harmless, where punishment was within limit for burglary.
Where verdict of guilty on indictment charging burglary and larceny was general, fact that judgment recited, "Said defendant, H.W., for . . . his felony and crime of burglary and larceny aforesaid, be confined in the state penitentiary of the state of Mississippi for and during a term of ten years from this day," held harmless, since punishment was within limit permitted by statute for burglary.
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Mize, Mize Thompson, of Gulfport, for appellant.
It is a well sustained rule in this state that when the jury brings in a verdict of "guilty as charged" it will be regarded as a conviction of burglarly alone.
Roberts v. State, 54 Miss. 421; Dees v. State, 89 Miss. 754, 42 So. 605.
Permitting the indictment to be amended so as to change the word "Agamando" to "Sajamada" was erroneous.
James v. State, 77 Miss. 370; Brown v. State, 81 Miss. 143, 33 So. 170; House v. State, 121 Miss. 43, 83 So. 337; Wright v. State, 130 Miss. 603, 94 So. 716; State v. Ellis, 102 Miss. 541, 59 So. 841; Lewis v. State, 85 Miss. 35, 37 So. 497; House v. State, 74 Miss. 368, 20 So. 838; McDonald v. State, 68 Miss. 348, 8 So. 508.
The giving of the following instruction for the state was error: "The court instructs the jury at the instance of the state that recent possession of stolen property, if such recent possession there be, is a circumstance for the jury's consideration, and in the absence of a reasonable explanation of such possession by the party in possession of such property, the jury may infer guilt therefrom.
Patterson v. State, 144 Miss. 410, 110 So. 208.
W.A. Shipman, Assistant Attorney-General, for the state.
As to a variance between the verdict and judgment, only those errors which deprive an accused of some substantial right are to be held reversible errors.
Thomas v. State, 117 Miss. 535, 78 So. 147; Dick v. State, 53 Miss. 384; Kelly v. State, 3 S. M. 518; Brown v. State, 72 Miss. 590, 18 So. 431; Roberts v. State, 55 Miss. 421; Smith v. State, 57 Miss. 823; Harris v. State, 61 Miss. 306; Dees v. State, 89 Miss. 754, 42 So. 605; Brown v. State, 103 Miss. 664, 60 So. 727; James v. State, 77 Miss. 370.
The amendment of indictment by changing name of hotel burglarized, where identity of offense was not changed, was proper. Secs. 1329 and 1330, Hemingway's 1927 Code (Secs. 1508 and 1509, Code of 1906).
Haywood v. State, 47 Miss. 1; Garvin v. State, 52 Miss. 207; Miller v. State, 68 Miss. 225, 8 So. 273; Knight v. State, 64 Miss. 802, 2 So. 252; Mackguire v. State, 91 Miss. 151, 44 So. 802.
It was not necessary to prove that owner of burglarized hotel was a corporation de jure. Proof of de facto existence was sufficient.
Underhill's Criminal Evidence, Sec. 294; Commonwealth v. Whitman, 121 Mass. 361; State v. Hopkins, 56 Vt. 260; James case, 77 Miss. 370; 2 Bish. New Cr. Prac., Secs. 137, 138; Johnson v. State, 73 Ala. 486; Berry v. State, 92 Ga. 47, 17 S.E. 1006; Morton v. State, 74 Ind. 338; Davis v. State, 108 Miss. 710, 67 So. 178.
Appellant's motion to quash the jury panel was properly overruled.
Sec. 2712, Code of 1906, Sec. 2359, Hemingway's 1927 Code; Sec. 1494, Code of 1906, Sec. 1315, Hemingway's Code 1927; Sec. 784, Code 1906, Sec. 581, Hemingway's 1927 Code; Lamar v. State, 63 Miss. 265; Weir v. State, 133 Miss. 873, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Solomon v. State, 71 Miss. 567, 14 So. 461; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Williams v. State, 92 Miss. 70, 45 So. 146.
It was not error for the court to instruct the jury that they could not convict the appellant of stealing the Longerine man's wrist watch.
Wesley v. State, 37 Miss. 327; Mack v. State, 36 Miss. 77; Head v. State, 44 Miss. 731; Memphis, etc., Railroad Co. v. Whitfield, 44 Miss. 466; Turnage v. State, 1 Miss. Dec. 532; Rodgers v. State, 21 So. 130; Hampton v. State, 132 Miss. 154, 96 So. 165; Smith v. State, 128 Miss. 258, 90 So. 883; Crawford v. State, 146 Miss. 258, 112 So. 681.
The granting of the following instruction was correct: "The court instructs the jury at the instance of the state that recent possession of stolen property, if such recent possession there be, is a circumstance for the jury's consideration, and in the absence of a reasonable explanation of such possession by the party in possession of such property, the jury may infer guilt therefrom."
Foster v. State, 52 Miss. 695.
The refusal of the following instruction was proper:
"The court instructs the jury for the defendant that you cannot convict him of grand larceny."
Flowers v. State, 101 Miss. 108, 57 So. 226; Calicoat v. State, 131 Miss. 169, 95 So. 318.
This is an appeal from a conviction of burglary. The indictment alleges the burglary and theft of a lot of valuable jewelry, including a lady's wrist watch. Shortly thereafter this watch, and also a gentleman's wrist watch, not referred to in the indictment, but which was among the articles stolen, were found in the appellant's possession; he then stating that he purchased them from a traveler, whose name and present whereabouts he did not disclose.
The case was tried twice. In the first trial the jury failed to agree and were discharged, and the case was then set for trial on the following day. Only one jury had been impannelled for that week, and only four jurors were present and available for the second panel. The court drew twelve names from the jury box, ordered the sheriff to summon them for the next day, and the second panel was then completed from the persons so drawn and summoned. When the case was called for the second trial, the appellant filed a motion to quash the panel, alleging, among other things, that he was prejudiced by being put to trial so soon after the mistrial on the preceding day. No reason appears why he should be so prejudiced, or why the case should be postponed to a later day. The motion to quash was overruled, and the court committed no error in so doing.
The indictment charged that the house burglarized was "that said hotel building commonly known as the `Anniston Hotel,' the property of Agamando, Inc., a corporation." The manager of the hotel testified that it was owned by Agamando, Inc.; that he was subordinate, and reported, to Jagoe, who was then introduced as a witness and stated that the hotel was owned by a corporation by the name of Sajamada, Inc. The charter of this corporation was offered, but was excluded, for the reason that it was not properly certified. Jagoe was then permitted to testify, over the appellant's objection, that Sajamada, Inc., was doing business as a corporation, and that he was a director and secretary and treasurer thereof. The indictment was then amended, over the objection of the appellant, so as to allege the ownership of the hotel in Sajamada, Inc. This amendment is within the provisions of section 1508, Code of 1906 (Hemingway's Code 1927, section 1329), unless it changed the identity of the offense with the commission of which the appellant was charged, and this it did not do, and the evidence of Jagoe that Sajamada, Inc., was known and acted as a corporation was sufficient proof of its corporate existence. James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. Rep. 527; Davis v. State, 108 Miss. 740, 67 So. 178.
An objection to the evidence of the possession by the appellant of the man's wrist watch was properly overruled. It is true that this watch was not referred to in the indictment, but that fact is of no consequence. The indictment, as one for burglary, would have been complete without an allegation of the actual commission of a larceny, Draughn v. State, 76 Miss. 574, 25 So. 153; 2 Bishop's Crim. Prac. (4 Ed.), section 142; and the absence of such an allegation does not render inadmissible evidence that articles stolen by the burglar were found shortly thereafter in the possession of the person charged with the commission of the burglary.
The court charged the jury, for the state, that it could not convict the appellant of the larceny of the man's wrist watch. It was not incumbent on the state to request this instruction, but the court committed no error in granting it, and, in fact, relieved the appellant from the necessity of requesting the instruction himself. Moreover, the appellant was not convicted of larceny, but of burglary.
The court refused an instruction requested by the appellant, charging the jury not to convict him of grand larceny. This instruction was requested on the theory that the lady's wrist watch was worth less than twenty-five dollars, and that a conviction of larceny must rest solely thereon. Assuming for the purpose of the argument that this theory is correct, no harm was done the appellant by the refusal of the instruction, for he was not convicted of larceny but of burglary.
The court instructed the jury, for the state, "that recent possession of stolen property, if such recent possession there be, is a circumstance for the jury's consideration, and, in the absence of a reasonable explanation of such possession by the party in possession of such property, the jury may infer guilt therefrom." This instruction properly announces the law. Harris v. State, 61 Miss. 304; Cook v. State (Miss.), 28 So. 833; Harper v. State, 71 Miss. 202, 13 So. 882; 9 C.J. 1080. It is true that the burglary must be proven by evidence independent of the recent possession of property then stolen, but here the commission of burglary was proven without any conflict in the evidence relative thereto, and the only mooted question was the identity of the burglar.
The verdict of the jury was: "We the jury, find the defendant guilty as charged." The judgment of the court, after setting forth this verdict, recites that: "The said defendant, Harry Wood, for such his felony and crime of burglary and larceny aforesaid, be confined in the state penitentiary of the state of Mississippi for and during a term of ten years from this day." The appellant's contention in this connection is that the verdict is for burglary, and therefore he must be punished for that crime alone, and not for the larceny. It is true that, under a general verdict of guilty on an indictment charging a burglary and larceny, only one punishment can be imposed, and that must be for the crime of burglary, Roberts v. State, 55 Miss. 421; Dees v. State, 89 Miss. 754, 42 So. 605; 9 C.J. 1091; but, in determining the extent of the punishment to be imposed, the court looks to all the circumstances surrounding the commission of the burglary, including the commission of the crime for the commission of which the burglary itself was committed, Roberts v. State, supra.
The recital of that fact in the judgment is, of course, unnecessary, but does no harm, where the punishment imposed, as here, is within the limit permitted by the statute for burglary.
Affirmed.