82 So. 809 | Miss. | 1920
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. ’ ’
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
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
Affirmed.