Wright v. State

94 So. 716 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of bur glary, the charging part of the indictment reading as follows:

“Did willfully, unlawfully, feloniously, and burglariously bréale and enter the storehouse of Hamilton & Rodman, a partnership, where goods, wares, merchandise, and other valuable things were kept for sale with the intent of him, the said Charlie Wright, to willfully, unlawfully, feloniously, and burglariously take, steal, and carry away the goods, wares, and merchandise of the said Hamilton and Rodman, and he, the said Charlie Wright, did willfully, unlawfully, and feloniously and burglariously take, steal,, and carry away twelve pairs of shoes, of the value of fifty dollars, four shirts, of the value of thirty-five dollars, three dresses, of the value of twenty-one dollars, and other valuable things of the personal property of said Hamilton and Rodman, a further description of said proeprty being to this grand jury unknown.”

The appellant was convicted upon the testimony of one John Eason who was indicted and convicted of the said burglary. The storehouse burglarized was a long distance from the residence of Charlie Wright, and the proof by Eason was to the effect that the burglary was committed about ten o’clock at night and that they had returned in the direction of Charlie Wright’s and were at another station on the road at midnight. The said John Eason had lived with Charlie Wright for some weeks prior to' the burglary, being employed as a cotton picker, and the goods were found in the possession of a brother of John Eason, who was also a witness in the case, but had no knowledge of the burglary; that is, he was not present at the burglary. This witness testified that he procured the goods found at his place from his brother, John Eason, at the residence of Charlie Wright; that the goods were taken by John out of a trunk and delivered to him; that Wright was not present at home on this occasion, and no one was at Wright’s house except a boy of Wright’s and the two Eason brothers. It was found at the store burglarized when examined that one of a pair of shoes had been taken and the other left in the store. A similar shoe was found at Wright’s place which the evidence for the defense shows without dispute was brought there by a crippled negro who worked for Wright. John Eason, the principal witness, upon whose testimony the proof of breaking and entering the storehouse depended, was impeached in every manner known to the law. He was on his own testimony an accomplice. He made statements out of court contrary to his statements in court. He had been convicted of burglary on other occasions and also of other crimes, and it was proven by witnesses knowing his reputation for truth and veracity that he was unworthy of belief and that they would not believe him on oath. The defendant proved by a physician, a white man, and by his landlord, also a white man, that on the night in question the defendant was at his home, and that he procured an order from his landlord to get the doctor to attend a man suffering from epilepsy who lived at Wright’s house. The doctor testified that he was present for several hours, and particularly from ten to twelve o’clock, in Wright’s house, and that Wright came for him and was there during the time he was at Wright’s house. A large number of negroes also testified that they were at Wright’s house on the night in question between ten and twelve o’clock going to see the afflicted boy. Some of these witnesses remained there the entire night. It was also in evidence that Wright had lived in the community for a number of years and had lived on the premises of his present landlord for seven or eight years, and that he had a good reputation for honesty and fair dealing.

The state in its instruction to the jury followed the indictment, said instruction reading as follows:

“The court instructs the jury for the state that, if you believe' from the evidence beyond a reasonable doubt that the defendant with John Eason and others, feloniously broke into the store of Hamilton & Rodman and took, stole, and carried away the goods of said Hamilton & Rod-man as testified to by the witnesses, it is your duty to convict him.”

' It is first assigned for error that the indictment was void because it does not charge the ownership of the property burglarized, it being alleged in the indictment as the property of Hamilton & Rodman, a partnership, without any allegation whatever to show who the partners were. The law does not recognize a partnership as a legal entity, and, where the ownership is laid in a partnership, the partners should be averred, and the proof should correspond with the allegation. A Mr. Hamilton was introduced as a witness, who testified that he was one of the partners, but he did not testify who composed the partnership. The questions and answers proceeded as though the property belonged to Hamilton because he was one of the partners.

It is settled by a long list of authorities that an indictment for burglary should allege ownership of the house burglarized. This averment is essential for the information and protection of the defendant. It was held, in the case of House v. State, 121 Miss. 43, 83 So. 337, that an indictment charging burglarizing of the property of the Southern Railway Company, a corporation, would not be sustained by proof that showed the burglarizing was done on the property of another named railroad. In State v. Ellis, 102 Miss. 541, 59 So. 841, the demurrer was sustained to the indictment charging the breaking of a railroad car on the side track of the NeAV Orleans, Mobile & Chicago Railroad Company because there was no statement of ownership of the car burglarized. The same, principle is declared in Lewis v. State, 85 Miss. 35, 37 So. 497; Brown v. State, 81 Miss. 143, 33 So. 170; James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. Rep. 527. The same rule applies in larceny (Hughes v. State, 74 Miss. 368, 20 So. 838; McDonald v. State, 68 Miss. 348, 8 So. 508) ; also in embezzlement (Hampton v. State, 99 Miss. 176, 54 So. 722).

While this will dispose of the present indictment, we feel that Ave ought to say that a conviction ought not to stand upon the evidence in this record. The only incriminating evidence of any consequence is that contained in the testimony of John Eason, who was impeached by every method known to the law while the defendant proved his defense by a large number of unimpeached witnesses, and the evidence clearly preponderates in his favor. If a new indictment should be found, the evidence for the prosecution should be materially strengthened.

The judgment will be reversed, and the appellant held on his bond to aAvait the action of the next grand jury.

Reversed.