Opinion
No. 32096.
April 6, 1936.
1. BURGLARY.
Indictment charging burglary held not defective because it did not charge whether crime was committed in day or nighttime (Code 1930, section 817).
2. BURGLARY.
Indictment charging accused with feloniously and burglariously entering store and stealing and carrying away certain property "willfully and feloniously" held not defective as failing to charge felonious intent in commission of the larceny (Code 1930, section 817).
3. BURGLARY.
Evidence held to sustain conviction of burglary.
4. BURGLARY.
Where indictment charged stealing of sack of sugar, evidence that other articles stolen at same time were found in accused's possession held admissible where it was apparent that same party stole the sugar and the other articles.
5. CRIMINAL LAW.
In burglary prosecution, evidence obtained by search without search warrant by private individuals held admissible, since constitutional provision against search and seizure without warrant is applicable only to governmental agencies (Const. 1890, section 23).
6. CRIMINAL LAW.
In burglary prosecution, remark by district attorney in argument to jury that accused had "hauled stuff off before" held not reversible error where jury was instructed not to consider the remark and it was not manifest that remark was not a reasonable deduction from the evidence.
APPEAL from circuit court of Monroe county. HON. THOS. H. JOHNSTON, Judge.
M.C. Young, of Aberdeen, for appellant.
The indictment charges no crime known to the law.
The indictment does not set out whether the alleged charge was committed either in the daytime or night, or in the nighttime. The statute, section 817 of the Code of 1930, as do most of the other burglary statutes, sets out that it happened in the daytime or the night-time. If the daytime or nighttime is no element of the crime or is unimportant, why should the statute set out day or night at all.
The indictment must charge that the intent must be felonious or that the accused feloniously intended the crime to be committed after the breaking.
Draughn v. State, 76 Miss. 574, 25 So. 153; Caruthers v. State, 121 Miss. 762, 83 So. 809.
The indictment is made indefinite and uncertain and is surely very much involved.
The court, in trying this case, should have excluded the testimony of each of the state's witnesses because, from the testimony offered, they do not legally connect the appellant with the commission of burglary or larceny.
The state had no right to set out in its indictment that the accused burglarized the store and obtained a sack of sugar, which it is not shown that he had anything to do with whatsoever, but the state was allowed, over the objection of the defendant below, to introduce testimony concerning several other articles of goods and wares which were shown by the state's testimony to have been scattered in the woods and in the fields in various places, but none found in the possession of the defendant except that it is testified to that two spoons were found in his car laying upon the seat in open view and no value whatsoever is shown as to these spoons or any other article testified to by the state witnesses, except proof of the value of the sack of sugar. So far as record is concerned, and it may be true, the spoons were of no value, they might have been worthless.
The motion and the final request for a peremptory instruction were unquestionably correct and should have been authorized under the various decisions of this court. The testimony, both for the state and as a whole, is wholly insufficient to sustain a conviction.
Richardson v. State, 33 So. 441; Ross v. State, 42 So. 821; Reed v. State, 38 So. 320; Abele v. State, 138 Miss. 772, 103 So. 370; Jackson v. State, 118 Miss. 602, 79 So. 809; Booker v. State, 9 So. 355; Knight v. State, 74 Miss. 140, 20 So. 860; Bowman v. State, 112 Miss. 789, 73 So. 787; Wright v. State, 130 Miss. 603, 94 So. 716; Gilford v. State, 115 Miss. 300, 76 So. 279; Bowen v. State, 60 Tex. Cr. 595, 133 S.W. 256; Linle v. Commonwealth, 151 Ky. 520, 152 S.W. 569; State v. Hedgpath, 142 Iowa, 44, 120 N.W. 468; State v. Snyder, 137 Iowa, 600, 115 N.W. 225; State v. Hammons, 226 Mo. 604, 126 S.W. 422; State v. Pate, 43 Idaho, 648, 253 P. 623; State v. Hamilton, 138 S.C. 164, 136 S.E. 391.
No evidence should have been allowed to go to the jury as to the search of the appellant's car on the public highway because the testimony does not show that the said appellant was in the act of committing any crime. That he was peacefully driving his car along the public highway, as he had a right to do, and the court erred in allowing this testimony, as to the search of his car and what was said and done in connection therewith, at the time of his arrest, without a search warrant.
Wharton's Criminal, sections 53-58; Kerr on Procedure (10 Ed.); Richardson v. State, 153 Miss. 654, 121 So. 284; Tucker v. State, 128 Miss. 211, 90 So. 845; Orick v. State, 140 Miss. 184, 105 So. 465; Ford v. Jackson, 153 Miss. 616, 121 So. 278; Harris v. Simms, 155 Miss. 207, 124 So. 325; Carlisle v. City of Laurel, 126 So. 786; State v. Marshall, 100 Miss. 626, 56 So. 792; Cornelius on Search Seizure (2 Ed.), sec. 38.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Section 817, Code of 1930, defines burglary and expressly provides that it makes no difference whether it is committed "day or night." Consequently, the omission in the indictment as to whether it occurred in the daytime or nighttime is wholly beside the question. It is immaterial what time during the twenty-four hours it was committed.
It is said that the indictment does not charge a felonious "intent" in charging the larceny part of the indictment. The indictment charges that they "wilfully and feloniously did take, steal and carry away," etc. This is sufficient.
Webster v. State, 146 Miss. 682, 111 So. 749; State v. Snowden, 164 Miss. 613, 415 So. 622.
The circumstances surrounding this burglary, in connection with the subsequent arrest of defendant with goods in his car identified as coming from the store, as set out in the facts preceding this argument, are, we submit, sufficient to take the case to the jury.
The indictment charges the larceny of a one hundred-pound sack of sugar. Appellant says that they should not have been allowed to show evidence of other goods stolen at the same time. There is no merit in this contention.
Wood v. State, 155 Miss. 298, 124 So. 353.
It is not clearly shown that the parties who searched the car were officers and the constitutional prohibition against unreasonable searches and seizures does not apply to the unauthorized acts of private citizens.
Hampton v. State, 132 Miss. 154, 96 So. 165; Bird v. State, 154 Miss. 493, 122 So. 539.
Argued orally by M.C. Young, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was indicted, tried, and convicted in the circuit court of Monroe county of the crime of burglary and sentenced to the penitentiary for a term of six years, from which he prosecutes this appeal.
Appellant contends that the indictment was insufficient, His demurrer thereto was overruled. The charging part of the indictment is in this language: "With force and arms in the county aforesaid and within the jurisdiction of this court the store house of T.B. Camp, then and there situated, feloniously and burglariously did break and enter, with intent the goods, chattels, and personal property of the said T.B. Camp, in said store house kept for use and sale, then and there feloniously and burglariously to take, steal and carry away; and one one hundred-pound sack of sugar of the value of five dollars and twenty-five cents in good and lawful money of the United States, the property of the said T.B. Camp, in said store house kept for use and sale, then and there willfully and feloniously did take steal and carry away."
The indictment was drawn under section 817, Code of 1930, which is in this language:
"Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building, ship, steamboat, flatboat, or railroad car in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering, in the day or nighttime, any building within the curtilage of a dwelling house, not joined to, immediately connected with, or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven years."
It is argued that the indictment should have charged whether the crime was committed in the day or night-time. There is no merit in this contention. The statute does not make any difference in the grade of a night-time burglary and a daytime burglary, the punishment is the same. Appellant contends further that the indictment is defective in that it failed to charge felonious intent in the commission of the larceny. We think a complete answer to that contention is that the indictment itself plainly charges a felonious intent not only in the breaking and entering but also in the larceny.
The state's case was this, and it was ample to sustain the conviction: T.B. Camp was a country merchant in Monroe county; his storehouse was about one hundred twenty yards from his residence. On the night of March 15, 1934, about nine o'clock he heard a car drive up near the store; it made a noise like a T-model Ford. He looked out, saw a light in the store, and shot at it twice. In two or three minutes he heard the car move away, then he went to the store and found the door broken open and a hundred-pound sack of sugar, a lot of handkerchiefs, pins, needles, tire patching, spoons, coffee, canned goods, and crackers missing. (The indictment charged the appellant with the larceny of a hundred-pound sack of sugar.) Camp, his son, and his neighbors, Blaylock and Ray, followed the tracks of the car. The tracks were unusual in that one of them had a narrow bar across the casing which left a distinguishing mark. About two hundred yards from the store they found a sack of sugar; they also found along the way some canned goods, crackers, and coffee, all of which were identified as having come out of Camp's store. They followed the tracks something like five miles when the car was overtaken; it was a T-model Ford car with a bar across the casing of one of the tires. Appellant was in this car. The car had no license tag, and they arrested him upon that ground, and found in the car two spoons which Camp identified as having come from his store. Appellant at first refused to give his name.
Appellant testified in his own behalf denying his guilt. He objected to the evidence of other stolen goods than the hundred-pound sack of sugar, this objection was overruled, and appellant assigns and argues that action of the court as error. From all the facts and circumstances, it is manifest that the person who stole the spoons and other missing things also stole the sack of sugar. There is no reasonable escape from that conclusion. It is difficult to conceive of circumstantial evidence of stronger probative value. It was competent. Wood v. State, 155 Miss. 298, 124 So. 353.
The court overruled appellant's objection to the evidence of the finding of the spoons in the car. The ground of the objection was that the evidence was obtained by a search without a search warrant. This contention is without merit. The search and seizure provision of the Constitution (section 23) has no application to searches and seizures by private individuals, it applies alone to governmental agencies. It was not shown that any of the persons making the arrest was an officer authorized to make arrests. Hampton v. State, 132 Miss. 154, 96 So. 165, 166.
The district attorney in his argument to the jury used this language, referring to appellant: "He has hauled stuff off before." On appellant's objection the court cautioned the jury not to consider the statement. In the first place it is not manifest that the statement was an unreasonable deduction from all the evidence in the case. In the next place, if it was, it cannot be said with confidence that the jury did not disregard it as they were instructed to do by the court.
Affirmed.