Brown v. State, 60 So. 727

60 So. 727 | Miss. | 1912

Beed, J.,

delivered the opinion of the court.

An affidavit was made against appellant in a justice of the peace court, charging him with burglary. Upon the trial the justice of the peace found appellant guilty of petit larceny. There was an appeal to the circuit court. Appellant objected, by demurrer, to being tried for petit larceny upon the affidavit charging burglary. The court overruled the demurrer, and appellant was arraigned on the charge of petit larceny. From a conviction appellant appeals, and assigns as error that the trial court erred in requiring him to he tried for petit larceny on the charge of burglary.

The affidavit charges that appellant broke and entered a certain warehouse with the intent to steal certain goods, merchandise, and personal property; but the affidavit does not charge that he stole any property. Burglary and larceny may be charged in the same count of an indictment. Harris v. State, 61 Miss. 304.

Section 1537 of the Code of 1906 provides that if, when the accused is being examined on a charge of felony, it shall appear that a felony has not been committed, but that the accused is guilty of a misdemeanor, of which the justice of the peace has jurisdiction, that he shall be convicted and punished for such misdemeanor. We are not to understand, however, that this provision of the law is to deprive the accused of the right to be fully advised in an affidavit or an indictment of the crime charged against him. It is the rule that where a defendant is charged with an offense consisting of several degrees that there may be a conviction of a minor offense necessarily included In the graver charge. In such case the charge must be sufficient to inform the defendant of the essentials of the lesser charge, 22 Cyc. 467.

It is stated in 22 Cyc. 467 and 468, in the discussion of the necessity of sufficient charge of minor offenses, that, “while it is not necessary to malte a specific charge of all the offenses included in the charge for which the indictment is drawn, a conviction cannot be had of a crime as included in the offense specifically charged, unless the indictment, in describing the major offense, contains also the essential averments of the less, or the greater offense necessarily includes all the essential ingredients of the less. . . . So, upon an indictment charging burglary and larceny, the larceny must be well laid in order to support a conviction for larceny.”

A comparison will show that the present case is different from Hastings v. State, 59 Miss. 541. Hastings was charged with assault and battery with intent to commit murder (a felony), and was ■ convicted by the justice of the peace of a simple assault and battery (a misdemeanor). It will be noticed that the charge against Hastings for the felony contained all the essential averments necessary in a charge of the misdemeanor for which he was convicted. In the present case the affidavit against appellant does not contain these necessary averments. He is not charged with the crime of larceny. The statements in the affidavit are not sufficient to inform him of the essentials of the charge of larceny. It will be noted that in the charge of burglary there was only a charge that the breaking and entering was with the intent to steal, and not with stealing. As a matter of fact, when appellant was put on trial, there was not before the court- any charge against him for larceny. The charge of burglary does not necessarily include larceny. It cannot be stated that the essential ingredients of larceny were in the affidavit in this case. The affidavit did not advise appellant sufficiently of the accusation against him. He should not have been tried in the circuit court for petit larceny on this plain charge of burglary, which did not include also a charge of larceny.

Reversed omd remanded.