52 So. 2d 349 | Miss. | 1951
Prom a conviction of the crime of burglary and a sentence to serve a term of six years in the state penitentiary, the appellant, Terrel Tuney Clanton, has appealed and assigned as error, among other grounds, the insufficiency of the proof to show a breaking and entering of the building in which a shotgun, two boxes of cigars and numerous cartons of cigarettes were stolen, of a total value sufficient to constitute the crime of grand larceny which was also alleged in connection with the crime of burglary.
It is a general rule that two crimes cannot be charged in the same count of an indictment, but, as an exception thereto, burglary and larceny may be joined in a single count, as in the instant case, and the jury may acquit of burglary and convict of larceny; but, if the jury returns a general verdict of guilty as charged, as was done on the trial of this defendant, it will be regarded as a conviction of burglary alone. Roberts v. State, 55 Miss. 421; Harris v. State, 61 Miss. 304; Dees v. State, 89 Miss. 754, 42 So. 605; and George v. State, 183 Miss. 327, 184 So. 67.
In the case at bar, the court instructed the jury that if they believed beyond every reasonable doubt that
The instruction last above mentioned should not have been given for the reason that the proof in the case is wholly insufficient to show beyond every reasonable doubt that there was a “breaking and entering” of the building in question on the occasion complained of. The person in charge of the building frankly stated that he could not say as to whether or not the window through which the culprits entered had to be raised by them to any extent in order to effectuate an entry. He merely testified that it was the usual practice to close the window before leaving the building for the night but he was unable to say that the window was not left up on that evening, except that he concluded that it had been closed from the circumstance that he had not found it open on any other occasion when he appeared at the filling station every morning to begin another day’s work.
The sheriff testified that he questioned the laborers at the filling station during his investigation of the crime, and that none of them were able to say as to whether or
In the Griffin case, supra, the owner of the building testified that the lock had been tampered with, but it was not shown as to when this had been done. The Court held that “breaking and entering” is a necessary element of burglary, and stated that: “This evidence does not even show that the door was closed, or was locked, and was opened by the appellant. Therefore a conviction upon such uncertain proof cannot rightfully stand in any court.”
In 9 Am. Jur. 246, Section 10, it is said: “Opening a locked door, lifting a latch or a hook, or turning* the knob of a door, opening it, and entering is sufficient breaking to support that element of burglary. The view is also taken that the pushing open of a door entirely closed, but unlocked, is a sufficient breaking to sustain a conviction for breaking and entering or for burglary. ’ ’
Because of the insufficiency of the evidence as to a breaking into the building in question, the Court is
In view of this conclusion, we do not reach the other assignments of error except to say that all of the evidence offered was competent, and that the defendant was not entitled to a general peremptory instruction to the jury to find him not guilty, even though it is true that under the proof now before us he would have been entitled to such an instruction, if the same had been requested, so far only as the crime of burglary was concerned.
The cause will therefore be reversed and remanded for a new trial.
Reversed and remanded.