Carothers v. State, 82 So. 809

Carothers v. State

82 So. 809 | Miss. | 1920

Stevens, J.,

delivered the opinion of the court.

Appellant was indicted and convicted of burglary and sentenced to the penitentiary for two years. On this appeal he contends that the indictment is fatally defective; secondly, that certain confessions were improperly admitted in evidence; thirdly, that the verdict is contrary to the law and the evidence; fourthly, complaint is made of the following language used by Ihe district attorney in his argument:

“Possession of recent stolen property is prima-facie evidence of guilt, and that I could obtain an instruction from the court to that effect.”

The indictment is drawn under section 1068, Code of 1906 (section 796, Hemingway’s Code), which reads as follows:

“Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years.”

The main averments of the indictment are as follows:

“The grand jurors . . . on their oaths present that McKinly Carothers, late of the county aforesaid, on the - day of -, 1919', in said' county, did then and there, in the nighttime, unlawfully, willfully, feloniously and burglariously break and enter the dwelling house of N. L. Eagan by then and there breaking and entering said house at and through a certain window in said house in which said house there was then and there in store kept certain goods, wares, merchandise, and household effects for use, etc., with then and there the unlawful, willful, and felonious intent of him, the said McKin ley Carothers, to then and there unlawfully, willfully, and feloniously take, steal, and carry away a portion of said goods, wares, merchandise, and household effects, against the peace and dignity of the state of Mississippi. ’ ’

*768A special bill of exceptions was taken to the quoted language of the district attorney. It appears that the court overruled the objection of the defendant. Dr. Eagan, whose dwelling house was entered by the defendant, testified, among other things, to certain statements which the defendant made after the defendant had been arrested and while he was on the way to jail. Mr. "Whitehead, a deputy sheriff and jailer, likewise testified to the same confessions. These witnesses testified that the confessions of the accused were free and voluntary, and were not induced by any promise or flattery of hope, but appellant contends that he was not warned that the confession would be used against him. The indictment was not demurred to, but in the motion for a hew trial it is contended that the indictment fails to use the word “burglarious” in charging the intent to commit larceny; that it is necessary to charge that the intent was both felonious and burglarious, and for this reason the omission is one going to the very essence of the offense, and accordingly condemned by Cook v. State, 72 Miss. 517, 17 So. 228, and Draughn v. State, 76 Miss. 574, 25 So. 153.

Is the indictment fatally defective? It was permissible, and it is frequently the practice, to charge in an indictment for burglary an intent the goods and chattels of the householder feloniously and burglariously to take, steal, and carry away. Bishop’s New Criminal Procedure, vol. 2, par. 145; Moseley v. State, 92 Miss. 250, 45 So. 833.

"We are of the opinion, however, that the failure to use the word “burglarious” in charging an intent to commit larceny does not render an indictment under our statute fatally defective. It will be observed that the indictment in this case does charge that the defendant did unlawfully, willfully, feloniously, and burglariously break and enter. The word “burglarious” primarily has reference to the manner of entry; it characterizes *769the breaking and entry as having been done in the manner of a burglar. If the indictment,' therefore, charges, as the present one does, that the breaking and entry was unlawful, willful, felonious and burglarious, it is only necessary to add the intent to commit a crime, and in doing so to specify and set forth the particular felony intended to be committed. The case of Draughn v. State, 76 Miss. 574, 25 So. 153, apparently holds that the defendant must intend “feloniously and burglariously to take and carry away.” It should be observed that the proof in that case showed that the house entered was not a dwelling house, but a crib or smokehouse, and there was a fatal variance between the indictment and the proof. Furthermore, the indictment in that case simply charged that the intent was “to commit the crime of larceny therein.” This allegation was more a conclusion of the pleader than a statement of the facts. Wharton’s Criminal Procedure, vol. 1 (10th Ed.), par. 466. The Draughn Case was properly decided, but we are not willing to go to the extent of holding that an indictment for burglary which properly charges the breaking and entry should also use the words “burglarious” or “burglariously” in charging the intent to commit larceny. The indictment, we think, is sufficient. It does charge that the intent to steal in this case was a felonious intent. It furthermore charges that goods, wares, merchandise, and household effects were situated in the dwelling house, and that appellant had the felonious intent to take, steal, and carry away a portion of said goods. Mr. Wharton says that “the mere allegation of an intent to commit a designated felony, without an averment of the overt acts tending towards its accomplishment, is said to be sufficient.” The authorities on the point under discussion are not at all harmonious. There can be no doubt that the particular statute under review enlarges the common law, and we see no reason to require the use of the word *770“burglarious” in designating and charging the particular crime which the accused intended to commit upon the unlawful breaking and entering. . To illustrate: The accused in breaking and entering might unlawfully intend to commit homicide, but in charging such a felonious intent we cannot appreciate how the word “burglarious” would at all be helpful in defining the unlawful and felonious intent to do murder. In the case at bar the felonious intent to steal is sufficiently charged.

The confessions of the accused were not rendered incompetent by reason of the failure of the deputy sheriff and jailer to caution the prisoner that his statements might be used against him. It is said in Corpus Juris. (16 C. J. 724):

“The better and safer course for an officer to pursue, when a prisoner is about to make a statement, is to warn him that it may be used against him.”

But in the absence of a statute requiring caution or warning, a perfectly voluntary confession is admissible. In the case at bar the proper predicate was laid before this testimony was admitted by the learned circuit judge. It has been expressly ruled in this state that:

“No caution is necessary when the confessions are made to persons having no judicial authority.” Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598.

It would appear under the authority of Harper v. State, 71 Miss. 202, 13 So. 882, that the language of the district attorney in his closing argument misstated the law, hut the misstatement was by way of argument and on a proposition which, if embodied in an instruction at all, would require technical and delicate discrimination. The very case relied upon expressly holds that recent possession by the accused of property “burglariously” stolen is a “circumstance” which the jury may consider. But the prosecuting attorney went beyond this statement by saying that it is prima-facie evidence of guilt. The error complained of does not appear in *771any instruction of the court and under the facts of this particular case we conclude that the rights of appellant were not prejudiced by the argument complained of, and the error in this case should be considered a harmless error. The verdict is amply supported by the evidence.

Affirmed.