Opinion
No. 35424.
December 6, 1943.
1. INDICTMENT AND INFORMATION.
The use of word "feloniously" in describing larceny is not merely descriptive of grade of the offense, but is an essential ingredient of the crime (Code 1930, secs. 1010, 1369).
2. CRIMINAL LAW.
Where indictment for petit larceny failed to charge that taking was "feloniously," omission went to very essence of the offense and could be availed of for first time on appeal (Code 1930, secs. 1010, 1369).
APPEAL from circuit court Leflore county, HON. J.D. GUYTON, Special Judge.
H.F. Jones, of Belzoni, for appellant.
It is quite essential in any prosecution of a person charged with a crime or misdemeanor that this charge be evidenced by an affidavit if a misdemeanor and in a justice court, and if by the Grand Jury there must be an indictment.
Bigham v. State, 39 Miss. 529; Code of 1930, Sec. 2098.
An affidavit charging the defendant with larceny of a "Lot of Scrap Iron" would doubtless be amendable. A demurrer would be necessary to be interposed, and this the defendant did in the county court. No ruling was made on the demurrer, and nothing appears of record showing that the court either approved or disapproved of the demurrer. The prosecuting attorney simply ran a line through the words "Lot of Scrap Iron" and inserted the words "Three steel oil drums each of the value of $2.50 One John Deere Planter of the value of $8.00." The proof, if the evidence produced may be called proof, only showed two steel oil drums, one of which had a head cut out. The third drum was not shown and the cotton planter was not proven. There was an old Avery planter among his scrap iron, according to one witness.
The order allowing an amendment to an indictment or affidavit must be put on the minutes of the court.
Crane v. State, 157 Miss. 548, 128 So. 579; Code of 1930, Sec. 1290.
Change made or amendment, especially so when a demurrer is pending and undetermined, without authority is reversible error.
Shurley v. State, 90 Miss. 415, 43 So. 299; Davis v. State, 150 Miss. 797, 117 So. 116.
There being no proper amendment of the affidavit in this case, the affidavit remains as it was before the attempted amendment, and being so simply charges the theft of "Lot of Scrap Iron" which charges no offense.
State v. Cannon, 118 Miss. 230, 79 So. 85; 36 C.J. 813, 814.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
Counsel for appellant assigns and argues a number of errors, but, in view of the fact that the affidavit, the original and the amended one, fails to charge the appellant with the crime of petit larceny, we deem it unnecessary to discuss the various assignments of error.
The affidavit is void for the reason that it fails to charge that the taking was a felonious taking.
Brittenum et al. v. State, 175 Miss. 453, 167 So. 619; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Poe v. State, 159 Miss. 76, 132 So. 92; Code of 1930, Sec. 1010; 2 Wharton's Criminal Law 1534, Sec. 1220.
Our court has held that when a demurrer is filed, it is the duty of appellant to call it to the attention of the court in order that same may be disposed of. Otherwise, he must be held to have waived the demurrer.
Clinton v. State, 163 Miss. 435, 142 So. 17.
However, our court has held, in effect, that where the omitted allegation goes to the very essence of the offense attempted to be charged, the omission thereof was not waived by appellant's failure to demur thereto.
Herron v. State, 118 Miss. 420, 79 So. 289; Reed v. State, 171 Miss. 65, 156 So. 650.
The defect may be availed of here for the first time.
McGaha v. State, 173 Miss. 829, 163 So. 442.
In an affidavit against appellant under Code 1930, Section 1010, it was charged that he "did then and there unlawfully take, steal and carry away" certain personal property. A demurrer was filed upon appeal to the circuit court but the record does not disclose any order thereon.
Although a felony is defined by Code 1930, Section 1369, as "any violation of law punished with death or confinement in the penitentiary," and although Section 1010 does not make petit larceny so punishable, we have heretofore held that the use of "feloniously" in describing larceny is not merely descriptive of the grade of the offense, but is an essential ingredient of the crime. Watkins v. State, 60 Miss. 323; Poe v. State, 159 Miss. 76, 132 So. 92; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Brittenum v. State, 175 Miss. 453, 167 So. 619. Since, therefore, the omission goes to the very essence of the offense, it may be availed of for the first time on appeal. Herron v. State, 118 Miss. 420, 79 So. 289; Reed v. State, 171 Miss. 65, 156 So. 650.
Decisions of other jurisdictions which take into account the grade of the offense and which find in the charge of "stealing" implications of an unlawful and felonious taking, having not been persuasive upon our court nor upon the legislature which despite our former decisions has re-enacted in Section 1010 a statutory definition that petit larceny shall consist of a felonious taking. It is but fair to state that the learned Attorney General concedes the soundness of these views.
Reversed and remanded.