No. 38516 | Miss. | Nov 17, 1952
From a conviction for the crime of grand larceny and a sentence of two years in the state penitentiary, Robert Lee Wiggins appeals.
The proof showed that the Hattiesburg Hardware Stores is a corporation, existing under the laws of Mississippi.
On arraignment, the appellant plead not guilty. No demurrer to the indictment was filed. There was no request for a directed verdict either after the State rested, or when both sides rested. There.was no suggestion at any time of a variance between the allegations of the indictment and the proof.
If the District Attorney had sought to amend the indictment in order to show that the Hattiesburg Hardware Stores is in fact a corporation, or if a demurrer had challenged the sufficiency of the allegation as to ownership, or if attention had been called to the variance between the allegations of the indictment and the proof, the trial court, under Section 2532, Code 1942, had authority to order the amendment of the indictment accordingly.
In Jackson v. State, 189 Miss. 672" court="Miss." date_filed="1940-11-01" href="https://app.midpage.ai/document/jackson-v-state-3518566?utm_source=webapp" opinion_id="3518566">189 Miss. 672, 198 So. 625" court="Miss." date_filed="1940-11-11" href="https://app.midpage.ai/document/saucier-v-life--casualty-ins-3518290?utm_source=webapp" opinion_id="3518290">198 So. 625, the larceny indictment alleged that the owner of the stolen property was Amos May, whereas May, in his testimony, gave his name as Ambers or Ambus. The District Attorney did not ask to amend, but the case proceeded to conviction and sentence without any specific objection that there was a variance in the name of the owner. The Court there said: “Had such objection been made the indictment would have been amended under Section 1289, Code of 1930; and the appellant, not having raised the objection specifically, hut having only sought to do so by peremptory instruction, is to be considered as having waived that objection. This is specifically held in former decisions of this Court.”
Appellant cites Hampton v. State, 99 Miss. 176" court="Miss." date_filed="1911-03-15" href="https://app.midpage.ai/document/hampton-v-state-7990884?utm_source=webapp" opinion_id="7990884">99 Miss. 176, 54 So. 722; McGaha v. State, 173 Miss. 829" court="Miss." date_filed="1935-09-30" href="https://app.midpage.ai/document/mcgaha-v-state-3520666?utm_source=webapp" opinion_id="3520666">173 Miss. 829, 163 So. 442; and Robinson v. State, 180 Miss. 774, 178 So. 588.
In the Hampton case, supra, the accused was charged with the embezzlement of funds of the American Express Company, a Corporation, whereas the proof showed that the express company was a partnership. The question of variance' was properly raised in the trial court. The opinion pointed out that the American Express Company, a Corporation, was a materially different concern from the American Express Company, a Partnership, and that “an indictment for embezzling the funds of one cannot be sustained by proof that the funds belong to the other.”
In the McGaha case, supra, the affidavit failed to charge that the property, which was stolen, belonged to anyone. The Court held that ownership of the property stolen is the essence of the offense, and, without such allegation, a conviction upon such an affidavit is void.
In the Robinson case, supra, the State simply failed to prove that the recovered brass was in fact stolen from the E. L. Bruce Lumber Company as charged in the indictment.
Affirmed.