Evans v. State

204 So. 2d 570 | Miss. | 1967

ON MOTION TO DISMISS APPEAL

BRADY, Justice:

This cause is before us on a motion to dismiss the appeal perfected by the appellant. The record reflects that the appellant was tried and convicted on an indictment charging him with the burglary of Carter’s Grocery Store and of stealing and carrying away $9 in good and lawful currency of the United States of America, together with goods, wares and merchandise of the total and aggregate value of $62.50.

The record in this case does not include a transcript of any evidence offered by the state or by the appellant. There is a jury verdict finding the defendant guilty of burglary and grand larceny. He was sentenced by the trial court to serve five years in the state penitentiary for the offense of burglary and five years for the offense of grand larceny, said sentences to run consecutively.

We hold that appellants in criminal cases have the right to knowingly and voluntarily petition the dismissal of their appeals, and the motion of dismissal of the appeal is therefore sustained.

Under the ruling set forth in Bradshaw v. State, 192 So.2d 387 (Miss.1966), we hold that the larceny charged in the indictment was charged not as a substantive offense but as demonstrative of burglarious intent, referred to in the jury verdict as grand larceny. The reference in the jury’s verdict as grand larceny was surplusage and therefore that part of the sentence imposing five years’ imprisonment in the state penitentiary on the charge of grand larceny is deleted and the appellant stands convicted of burglary and sentenced to five years therefor in the state penitentiary. See also Thompson v. State, 153 Miss. 593, 121 So. 275 (1929).

The cause is remanded to the circuit court for proceedings not inconsistent with this opinion.

Motion sustained with modification.

GILLESPIE, P. J., and RODGERS, PATTERSON and SMITH, JJ., concur.