Hampton v. State

96 So. 166 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of burglary. The evidence is to the effect that the residence of John Love was broken and entered during his absence and about twenty dollars worth of home cured bacon was stolen therefrom. The manager of the plantation on which the appellant was a tenant and John Love entered the appellant’s residence during his absence, but with the consent of his wife, who was then present, and found therein some meat which Love identified as that taken from his residence covered with a sack which Love also identified as having been taken therefrom at the time of the burglary.

On the day of the burglary the appellant was seen going to his residence from the direction of Love’s residence with a sack containing some bulky article on his shoulder. The evidence of the plantation manager and of Love as to what they saw while in the appellant’s house was admitted over the appellant’s objection; the ground of his objection thereto being that the house was entered without his consent and without a search warrant. The admission of this evidence and the granting of an instruction to the state are assigned for error. The instruction is as follows:

■ “The court instructs the jury for the state that, if they believe beyond a reasonable doubt from the evidence in this case that Mose Hampton feloniously and burglariously broke into the house of John Love with intent to steal therefrom, and did unlawfully take, steal, and carry away meat of any amount and value from said home, then he is guilty as charged, and the jury should so find.”

The evidence complained of was properly admitted for the prohibition against unreasonable searches and seizures contained in section 23 of the state Constitution is “in tended to prevent such as are made through governmental agencies, and has no bearing on the unauthorized acts of private persons.” 24 R. C. L. 704; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834 Ann. Cas. 1915C, 1177; Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269.

The ground of the objection to the instruction complained of, as stated in the brief of counsel for the appellant is that “it omits anything as to the ownership of the property and does not tell the jury that the defendant had to feloniously and burglariously take, steal, and carry away the property.” Assuming for the sake of the argument that the instruction is erroneous in these particulars, the error was harmless for the reason that it appears from the evidence, without conflict therein, that Love’s house was burglarized, and some meat belonging to him was stolen therefrom, and the only question which the jury was called on to decide was whether or not the appellant was the guilty party. An erroneous instruction will not justify the reversal of a judgment unless the party complaining thereat was prejudiced thereby. Jones v. State, 104 Miss. 871, 61 So. 979, L. R. A. 1918B, 388.

Affirmed.