Pitts v. State

76 So. 140 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted in the circuit court of Calhoun county at the September term, 1915, for the larceny of “three certain yearlings and one certain cow, a more particular and accurate description 'of which is to the grand jury unknown, then and there the personal property of D. E. Spearman of the value of fifty dollars,” etc. On the trial of the cause the proof on the part of the state developed the fact that the cow in question was not the property of D. E. Spearman, but was the property of his son-in-law. There was no direction to the jury to find for the defendant as to the cow,, and no direction as to finding the value of the yearlings in question separate from the cow. The proof in the case on the value of the cattle as a whole varied considerably, there being several witnesses who testified that the value of the whole bunch of cattle alleged to have been stolen was not exceeding thirty-five dollars or forty dollars. It appears from the testimony of the prosecuting witness that the cow was much more valuable than the yearlings, and if the cow had been eliminated from the case and the jury instructed to find for the value of the yearlings separately, it is probable that the jury would have found their value to be less than twenty-five dollars, and consequently petit larceny instead of grand larceny. In addition to this the defendant could not plead former jeopardy as to the theft of the cow, as there is no such description of the cow as could identify her when you take from the description the fact that she was owned by the person alleged to be the owner in the indictment. If this part of the description is taken from the indictment it could not stand. It follows that the case should be reversed and remanded for a new trial, so that the cow may be eliminated from consideration by the jury.

Reversed and remanded.