Dees v. State

Nov 15, 1906
Versions:42 So. 605
89 Miss. 754
Whitfield, C. J.,

delivered the opinion of the court.

The learned counsel for appellants insist that, since the indictment charges burglary and larceny, and the verdict is a general one of guilty as charged, that means a verdict of guilty of burglary alone, as held in Roberts v. State, 55 Miss., 421. This is undoubtedly correct. Learned counsel further insist that the second instruction refused to the defendants ought to have been given,, which is as follows: “The court instructs the jury, for the defendants, that if you believe from the evidence that Chapman broke open Holmes’ store, unassisted by either of the defendants, and that he in so doing did not intend to commit a crime after so breaking, then neither of the defendants is guilty of the charge in the indictment.” But the instruction was properly refused, since it was not limited to burglary. The jury might well have thought the defendants guilty of grand larceny, even though acquitting of the burglary; and consequently this charge, which told the jury that neither of the defendants was-guilty of the charge in the indictment, was the equivalent of charging the jury that they should find the defendants not only not guilty of burglary, but not guilty of larceny.

Learned counsel very ingeniously insist, in the next place, that the first instruction given for the state was erroneous. That instruction is in the following words: “The court instructs the jury, for the state, that if they believe from the evidence in this case beyond every reasonable doubt that the defendants, either alone or in conjunction with Chapman, broke and entered Holmes Brothers’ store, and that such breaking *762and. entering was without the consent of Holmes Brothers, and the defendants, upon the turning on of the light, were in the act of wilfully taking, stealing, and carrying away the goods mentioned in the testimony, they are guilty as charged, regardless of who actually broke open the store, and regardless of the fact that Holmes Brothers had agreed to pay Chapman for assisting in the detection and apprehension of the defendants.” The argument is that, if guilty as charged means simply guilty of burglary, this charge is erroneous, for the reason that it instructs the jury that the defendants should be convicted of burglary, regardless of who actually broke open the store; counsel insisting that the evidence shows that Chapman had the consent of the owners to bréale and enter the store, and that, if he did, then he could not be guilty of burglary, and so neither of the defendants could be guilty. But the trouble with this view is two-fold: First, that there is distinct evidence that Holmes Brothers never gave their consent for Chapman or any one else to break and enter their store; second, that the charge expressly negatives their consent. Keeping in mind that this instruction thus negatives the consent of the owners, given to either of the defendants or to Chapman, this charge does not fall within the principle announced in the case of Strait v. State, 77 Miss., 693 (s.c., 27 South. Rep., 617). That case is easily differentiated from this in more particulars than the one vital particular that in that case the detective himself made the entry into the lawyer’s office, and the defendant never broke or entered at all, simply walking in through an open door.

On the testimony it is only needful to say that the evidence of the guilt of the defendants is simply overwhelming.

Affirmed.