Opinion
No. 32980.
March 21, 1938.
1. INDICTMENT AND INFORMATION.
An amendment of grand larceny indictment, describing stolen property as "one red, white face, muley yearling" and "one red, white face cow," by adding words, "with white stripe down its stomach," after words "yearling" and "cow," was properly allowed as not varying, but merely supplementing, description in original indictment and not constituting a new case or description preventing defendant from understanding offense charged.
2. LARCENY.
Evidence held sufficient to sustain conviction of grand larceny in stealing three yearlings and one cow.
APPEAL from the circuit court of Lamar county. HON. HARVEY McGEHEE, Judge.
E.F. Coleman, of Purvis, for appellant.
The State introduced as exhibits to the testimony of several of the witnesses two hides, each of the hides show that they were hides from red and white cattle with white face, that is the evidence shows conclusively that the cattle, that is, the two head of cattle the State was standing on, was red with white stomach. Then there being a variance between the description alleged in the indictment the district attorney moved the court for authority to amend the indictment as to the description of the cattle.
There are three descriptions of the cattle alleged to have been stolen by the defendant and none of the descriptions are alike. Therefore, afer the amendment was allowed over the objection of the defendant, which amendment was allowed for the purpose of curing a variance, there was still a variance between the indictment as amended and the proof offered, as the witness Everett Owens was put on the stand and gave a description of the cattle, he did not describe them as they were described in the indictment or the amended indictment.
The defendant objected to the amendment but the court overruled the motion and objection and permitted the amendment. After the amendment was entered, that is, after the order allowing the amendment was entered the defendant moved the court for a mistrial. This motion was overruled by the court and the defendant required to proceed with the defense of the case. This motion should have been sustained under the facts.
Section 1289, Code of 1930.
This court has repeatedly held that where variance occurred between the allegation in the indictment and the proof, and the variance was material, then the defendant should be discharged. Hence there was a material variance between the indictment and the proof in this case as the man who butchered the cattle said they were of a certain color and the amended indictment said they were of another color. For this reason the motion for a directed verdict should have been sustained.
The motion for a directed verdict should have been sustained for the further reason the State has failed to show the proper asportation of the cattle to make the crime of grand larceny.
The law required the State to prove that the two cattle were taken from the owner at the same time in order to make the crime grand larceny, for it is well established that where there are successive larcenies, each complete and distinct, and not constituting one continuing transaction, the mere retention and possession by the thief of the fruits of his petit larcenies does not make him guilty of grand larceny.
Scarver v. State, 53 Miss. 407.
It is also well settled in this state that there is no presumption that articles found in the possession of some one were all stolen at the same time, when the evidence shows that they were probably not all taken at the same time but at different times, that is that they were not taken from the possession of the owner at the same time.
Scarver v. State, 53 Miss. 407.
The defendant is presumed to be innocent of the crime charged in toto and each and every material element of the crime charged, this is too well established principle of law to need the citation of authority, but we cite the court to the cases as follows:
Owens v. State, 80 Miss. 499; Cook v. State, 85 Miss. 738.
Where a person takes property openly and publicly and in the day time, in good faith, under a claim of right and selling the same cannot be convicted of the larceny thereof.
Buchanan v. State, 5 So. 617; Hamilton v. State, 111 Miss. 779.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
This appears to have been a case where it was immaterial whether the indictment was formally amended or not. If defect it was, certainly it was an amendable defect and if the amendment did not have the effect of changing the identity of the offense, no harm could come to appellant as a result of the amendment.
Osser v. State, 165 Miss. 680, 145 So. 754.
It has been held that if the evidence develops that the defendant was informed of exactly the nature of the alleged offense and has prepared his defense accordingly, a variance in time is without harm to the defendant, since the identity of the offense has not been changed.
Sanders v. State, 141 Miss. 289, 105 So. 523.
It has also been said that a variance which necessitates an amendment of an indictment or a reversal on account thereof must be material and affect the substantive rights of the defendant.
Roney v. State, 153 Miss. 290, 120 So. 445.
It is said that the state failed to show a sufficient asportation. The evidence shows that appellant and his two boys picked up these cattle off the range and drove them up into a pen where they were subsequently shot and dressed by Owens. Such showing of asportation is sufficient.
Delk v. State, 64 Miss. 77, 1 So. 9.
The evidence discloses that these two head of cattle were rounded up off of the open range at once and there is no contradiction of this testimony.
Aultman v. State, 126 Miss. 629, 89 So. 265.
Albert Davis, appellant, was indicted in the circuit court of Lamar county for grand larceny; convicted thereof, and sentenced to serve a term of three and one-half years in the state penitentiary, from which this appeal is prosecuted.
In the original indictment the property stolen was described as "One red, white face, muley yearling, of the value of $25.00, the personal property of J.J. McMurray, and one red, white face, white stomach, yearling of the value of $25.00; one red muley, white stomach yearling, of the value of $25.00; and one red, white face cow of the value of $25.00, the personal property of Roscoe McMurray, and of a total value of $100.00."
When the State had introduced its evidence, the district attorney entered a motion for leave to amend the indictment by describing the property as "One red white face muley yearling with white stripe down its stomach or belly, of the value of $25.00, the personal property of J.J. McMurray," and "One red white face cow with white stripe down her stomach or belly, of the value of $25.00, the personal property of Roscoe Murray," to which motion the appellant made objections and moved for mistrial and a continuance of the case. The court sustained the motion to amend, and overruled the motion for a mistrial.
The State introduced evidence showing that the appellant sold, or contracted to sell and deliver, to Jones Davis, who conducted a meat market in Hattiesburg, certain cattle; that they sent their butcher and other employees to the home of the appellant to secure said cattle, prepare them for market, and bring the meat and hides to Hattiesburg. These employees went to the home of the appellant, where the cattle were driven into a pen by appellant, butchered by the employees, and the meat and hides brought to Hattiesburg. Another party appeared on the scene and witnessed the butchering of these cattle. The McMurrays missed the cattle, instituted some investigation, and, in some way, learned that these cattle had been butchered and taken to Hattiesburg. The parties proceeded to Hattiesburg, looked up the butcher of Jones Davis, asked him about the cattle, and this butcher readily told them about preparing the cattle for market, and exhibited the hides containing the marks of the owners. The parties then sought the owner of the meat market, and he readily told them about the transaction; showed them the meat in the shop; confirmed what the butcher had told them; and also stated to the parties that a description of the cattle butchered had been entered on the firm's books as required by law. The butcher and other servants of Jones Davis testified that the appellant pointed out to them the cattle that he had sold to Jones Davis, drove them into a pen; and sent some message by them to Jones Davis.
When the appellant was arrested, he approached a party who went on his bail bond, and stated that he had bought the cattle from one Anderson. Later on appellant changed the name from Anderson to one Davis, of Montgomery, Ala., as Anderson did not seem to be well known in the community. There was other testimony showing investigation and descriptions of the cattle.
It is first assigned that the court erred in permitting an amendment and refusing a mistrial thereafter. We are of the opinion that the court properly allowed this amendment; that it did not vary the description, but merely supplemented it; and that the original indictment probably would have been sufficient; and that such amendment did not constitute a new case or a new description which would prevent the appellant from understanding the offense with which he was charged. Consequently, there was no error in overruling the motion for a mistrial and continuance.
It is next assigned that the court erred in overruling the motion for a directed verdict by the appellant of not guilty. The evidence is sufficient to sustain the verdict, and there is nothing from which we could infer that any additional evidence would have been available had a mistrial been entered.
There are also assignments of error as to instructions given to plaintiff and refused to defendant. We have examined these instructions and the contentions, and find that the latter are without merit.
The judgment of the court below therefore will be affirmed.
Affirmed.