111 So. 564 | Miss. | 1927
First. The counsel strenuously urges upon the court that the facts did not warrant a conviction for larceny. We have carefully read the testimony for the state and for the defendant, and, according to the theory of the state, the defendant, in the nighttime, stole nineteen of Burt's sheep, and was caught in the act about midnight by the officers of the law, who were waiting for him on the highway to come out with the sheep loaded on a truck. The state's theory was that there had been a division of the sheep between the father of the defendant and Burt, who had been partners for many years prior to the alleged dissolution, and the defendant was cognizant of all the facts of the division of the sheep, each partner having been given his share of the sheep. One of the officers testified that the defendant, when arrested, stated that there was no use to carry the sheep into Purvis; that they were "Uncle George's sheep, referring to George Burt, the prosecutor.
The defendant and his witnesses undertook to show that there had been no completed partnership settlement, and that the sheep belonged to appellant's father, from whom he had purchased them. There was some conflict as to whether or not there had been a settlement, all of which was submitted to the jury; whereupon the jury found, beyond reasonable doubt, against the appellant on the facts. Not being able to say that the jury was wrong, we cannot reverse this case in this state of the record.
Second. There was a demurrer to the indictment which was confessed by the district attorney, and the court allowed counsel to amend it by describing more accurately the sheep. By the original record, it appeared that the order permitting the amendment was not entered on the *327 minutes until the 11th day of February, 1926, which was after the trial and conviction of the appellant, Davis. However, the attorney-general secured a writ of certiorari, and the clerk in answer thereto filed a copy of the order showing that same was entered on the minutes of the lower court on February 4, 1926, after the demurrer was interposed, and several days before the trial of the case. The marking of the order which was copied on the minutes on February 4, 1926, as being filed on February 11th, was a clerical error on the part of the clerk. At any rate, the order on the minutes controls, and it is not necessary that said order be filed, provided it is actually entered on the minutes before the trial of the case. Therefore we think there is no merit in this contention of the appellant.
Third. There was no error in overruling defendant's motion for a continuance.
Taking the whole record, we can find no good reason for disturbing the verdict of the jury and sentence of the court below.
Affirmed.
