Smith v. State, 97 So. 4

97 So. 4 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of burglary, and the indictment charges that—

The appellant and another “the storehouse of . the Burnsville Mercantile Company, a corporation, did feloniously and burglariously break *and enter with the felonious intent to feloniously and burglariously take, steal, and carry the goods, chattels, and things of value belonging to said company then and there kept, and nine dollars in money, and certain quantities of tobacco and cigarettes to the value of one dollar, or more, the exact amount being to the grand jurors unknown, all of said money and goods so taken having a value of ten dollars or more good and lawful money of the United States, and all of said money and goods so taken being then and there the property of the said Burnsville Mercantile Company, they, the said John Faust and Ernest Smith, then and there did willfully and feloniously take, steal, and carry away,” etc.

A demurrer challenged the sufficiency of this indictment because it charges that the storehouse was broken and entered “with the intent to feloniously and burglariously take, steal and carry the goods, chattels,” etc., and not “with intent to feloniously and burglariously take, steal, and carry away the goods, chattels,” etc. This demurrer was sustained, but the district attorney was permitted to amend the indictment by inserting the word “away” therein.

• Conceding for the sake of the argument that the word “carry” must be followed by the word “away” in an indictment in order to charge an asportation, its omission here is manifestly a mere clerical error, and that the intent intended to be charged was “to carry away the goods, chattels,” etc., sufficiently appears from the allegation charging the commission of the larceny; consequently the appellant was fully informed of the nature and cause of the accusation against him. The demurrer therefore should have been overruled and the amendment to the indictment was unnecessary.

The appellant did not testify and was refused mn instruction that — “Ijhe jury must not consider the fact that the defendant did not testify in this case as evidence against him, nor does this fact arouse even a suspicion that he is guilty,” etc.

This instruction might properly have been given under section 1918, Code of 1906 (Hemingway’s Code, section 1578), but a failure to give it will necessitate a reversal of the verdict only when it affirmatively appears from the record that the appellant was prejudiced thereby. Rule 11 (72 So. vii); Funches v. State, 125 Miss. 140, 87 So. 487. All that appears here in this connection is the refusal of the instruction.

There is no merit in any of the other assignments of error.

Affirmed.