Opinion
No. 32608.
April 5, 1937.
1. INDICTMENT AND INFORMATION.
In indictment for burglary, insufficiency of allegations as to ownership of building alleged to have been burglarized may be supplied by amendment.
2. BURGLARY.
In prosecution for burglary, proof that building burglarized was leased by administratrix of estate of Charles Minke, deceased held fatal variance with allegations in indictment that building was "of the property of Charles Minke."
3. BURGLARY.
Indictment for burglary may properly lay ownership of the house broken and entered in a lessee in possession.
4. DESCENT AND DISTRIBUTION. Wills.
Upon death of a person, his property vests immediately in his heirs or in devisees or distributees under his will if a will has been made.
APPEAL from circuit court of Adams county. HON. R.E. BENNETT, Judge.
Luther A. Whittington and William Braden, Jr., both of Natchez, for appellant.
There was no direct evidence whatsoever connecting the defendant with the commission of the crime of burglary for which he was convicted. The only two circumstances offered in evidence that are relied upon to show the connection of the defendant with the commission of the burglary was the circumstance testified to by Mrs. Simpson that on Sunday afternoon about three o'clock when she left her store building she saw two railroad men and Tony May and the defendant standing near the door of the store that was afterwards burglarized. This is not sufficient to warrant a verdict convicting the defendant of burglary of the store.
James v. State, 26 So. 929.
No amount of circumstantial evidence will support a conviction which does not exclude every other reasonable hypothesis than that the accused was guilty.
9 C.J. 1075.
We submit, therefore, that under all the evidence in this case the conviction of the defendant of burglary was unwarranted and is not sustained or supported by the evidence offered before the jury. There is another point, may it please the court, and that is to the variance between the indictment and the proof as to the ownership of the property burglarized.
Material variance between the allegation and the proof with respect to the ownership of the premises is fatal and entitles defendant to an acquittal, unless, as is sometimes the case, a statute makes an unprejudicial variance in this respect immaterial, and the variance is not prejudicial.
9 C.J. 1061.
The property burglarized was not the property charged in the indictment to have been burglarized.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The occupant of property, even though such occupancy be wrongful, is the owner, so far as a burglary is concerned.
Lewis v. State, 85 Miss. 35, 37 So. 497; Clinton v. State, 163 Miss. 435, 142 So. 17; Davis v. State, 173 Miss. 783, 163 So. 391.
And so, it is proper to allege ownership in a tenant.
Brown v. State, 81 Miss. 143, 33 So. 170; Davis v. State, 173 Miss. 783, 163 So. 391; Clinton v. State, 163 Miss. 435, 142 So. 17.
Under section 1621, Code of 1930, the administratrix c.t.a. is entitled to the possession of the estate to be administered. So that, technically, it might be that the indictment should properly have laid ownership in the administratrix.
Title to property is not involved in a burglary prosecution. Possession only is involved, since burglary is a crime against possession rather than title.
Crane v. State, 157 Miss. 548, 128 So. 579.
In the case at bar, the business was being operated for and on account of the estate of Charles Minke. For all practical purposes, we submit that the variance here complained of is not substantial and the conviction in this case should not be reversed for that reason.
Argued orally by Luther A. Whittington, for appellant, and by W.D. Conn, Jr., for appellee.
Appellant was convicted on an indictment charging him with burglary and larceny, in which it was alleged that he and another broke and entered a "store building, there situated, of the property of Charles Minke," etc., and on appeal he seeks a reversal on the ground, among others, that there was a variance between the allegation of the indictment and the proof, as to the ownership of the store alleged to have been burglarized.
An indictment charging burglary must allege the ownership of the building burglarized, and there is language in the opinion in the case of Cooksey v. State, 175 Miss. 82, 166 So. 388, which tends to support the view that the averment that the building here alleged to have been burglarized was the property of "the estate of Charles Minke" was insufficient, but since the defect, if any, was amendable, and the sufficiency of the indictment does not appear to have been challenged either in the court below or in this court, we will express no opinion on that point.
Assuming for the purpose of this decision only that the ownership of the property was sufficiently alleged in the indictment, we think there was a fatal variance between the allegation of the indictment on this point and the proof thereof. While an indictment for burglary may properly lay the ownership of the house broken and entered in a lessee in possession, such was not done in this case. The proof shows that the building alleged to have been burglarized was leased by the administratrix of the estate of Charles Minke, deceased, for the purpose of carrying on a business formerly owned by her deceased father. Upon the death of a person his property vests immediately in his heirs, or the devisees or distributees under his will, if one has been made, and proof of possession in a lessee administratrix is not proof of ownership by the estate of a deceased person. We think, therefore, that there was such variance between the proof of ownership of the building and the allegations of the indictment as requires a reversal of the judgment of the court below.
Reversed and remanded.