Opinion
No. 33355.
October 31, 1938.
1. BURGLARY.
An indictment for burglary should charge ownership of the dwelling alleged to be burglarized to be in a living individual or corporation.
2. CRIMINAL LAW.
Conviction for burglary could not be reversed on appeal on ground of defective allegation of ownership of house burglarized in indictment, where no demurrer was found to the indictment and no point was presented to the trial court thereon.
3. BURGLARY.
Evidence held insufficient to justify conviction for burglary.
4. BURGLARY.
To constitute the crime of "burglary" it is essential to show either an actual or constructive breaking into the house.
5. BURGLARY.
Entry of house by open door, window, or other opening does not constitute "breaking" into the house as element of crime of burglary.
6. CRIMINAL LAW.
On a reversal of conviction for burglary for insufficiency of evidence to prove offense, case was required to be remanded for another trial where defendant did not request peremptory instruction.
APPEAL from the circuit court of Jackson county; HON.W.A. WHITE, Judge.
Otto Karl Wiesenburg, of Pascagoula, for appellant.
The first question is whether the indictment properly charged the ownership of the dwelling alleged to have been burglarized. The pertinent portion of the indictment charging the ownership of the dwelling reads: "that certain dwelling house of and belonging to the Estate of W.M. Canty."
The jury returned a verdict of guilty as charged in the indictment, and hence the conviction was of burglary alone. It is a general rule that two crimes cannot be charged in the same count of an indictment; but as an exception, larceny and burglary may be joined in a single count, and in such case the jury may acquit of burglary and convict of larceny; but if they return a general verdict of guilty, it will be regarded as a conviction of burglary alone.
Roberts v. State, 55 Miss. 521; Harris v. State, 61 Miss. 304; Brown v. State, 103 Miss. 664.
The indictment is fatally defective in that it does not allege the ownership of the building burglarized. An indictment for burglary whether at common law or under a statute must allege the ownership of the dwelling house or other building broken and entered, if it is known, or it will be fatally defective.
9 Am. Jur., Burglary, sec. 48, page 263; 9 C.J. 1043, sec. 77; State v. Ellis, 102 Miss. 541, 59 So. 841; James v. State, 77 Miss. 370, 29 So. 929; Nichols v. State, 144 So. 374, 164 Miss. 158; Wright v. State, 130 Miss. 603, 94 So. 716; Cooksey v. State, 166 So. 388; Davis v. State, 150 Miss. 797, 117 So. 116.
The indictment attempts to lay the ownership of the dwelling in the "Estate of W.M. Canty." This was error. The "Estate of W.M. Canty" is neither a person, nor a legal entity in whom ownership of the dwelling can be laid.
9 C.J. 1049, sec. 89; Beal v. State, 53 Ala. 460; Anderson v. State, 48 Ala. 665; State v. Hammonds, 226 Mo. 604; Pleasant v. State, 17 Ala. 191; Beach v. State, 173 So. 429, 178 Miss. 336.
There was no evidence of the breaking or opening of any doors, windows, or other means of ingress nor was there evidence of any constructive breaking by the defendant. It is settled law that the unexplained presence of one accused of burglary in a dwelling place, by itself alone, is insufficient to establish that material element of the offense of burglary.
9 C.J. 1075, sec. 133; Am. Jur., 241, sec. 4; 1935 Annual Annotation to Corpus Juris, sec. 133, page 484; Moslev v. State, 174 S.E. 544; Thomas v. State, 97 S.W.2d 955; 1937 Annual Annotation to Corpus Juris, sec. 133, page 525; 9 C.J. 1010, sec. 5.
The record discloses the defendant to have been sans counsel in the court below. It was his constitutional right to defend himself (Sec. 26, Constitution), and the court, even though the defendant was a pauper, could not and did not appoint counsel for him.
The record discloses that the case went to the jury without a single instruction being requested by the State or the defendant. The defendant, a layman, could not possibly have prepared written instructions as required by statute, the district attorney felt under no compulsion to do so. The indictment in this case may be legally sufficient, but to the defendant and, more important, to the jury, its serpentine complexities of verbiage constituted a nightmare of circumlocution.
Under the settled law of this state (Roberts v. State, 55 Miss. 421) and under the indictment the jury could have brought in a verdict of larceny alone and from the evidence, petty larceny at that. But they received no instructions to that effect.
The jury could not have convicted the defendant if they had a reasonable doubt as to his guilt. 5 Miss. Digest-Criminal Law, 789. Any instruction obtained by the state would have had to have been so qualified. But the jury received no instruction to that effect.
This counsel admits that it is a requirement in any trial of a criminal case under the due process of equal protection clauses of the 14th Article of Amendment to the Constitution of the United States, and the 14th, 24th, 26th and 31st Sections of the Constitution of the State of Mississippi, that "a defendant on trial is entitled to have the law distinctly and precisely stated."
We submit in a case of this type, where the defendant, a layman, is his own counsel, the duty vests on the State of Mississippi, by and through its elected representative, the district attorney, to instruct the jury at least as to what the law is.
18 C.J. 1296, District and Prosecuting Attorneys, sec. 1.
The statute seals the mouth of the Judge in the trial court, but it does not stay the pen of the district attorney. This court has condemned but not forbade the practice of cases going before the jury without instructions in civil cases.
J.C. Penney Co. v. Evans, 160 So. 779.
Juries may have been once presumed to know the law, but today even Justices of the Supreme Court admit they do not know all the law. It is impossible for the members of the court to keep in mind all the statutory laws of the state.
McDonough Motor Express v. Spiers, 177 So. 655.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The indictment charged the ownership of the building burglarized as being the "estate of W.M. Canty." This was an improper allegation of ownership as has heretofore been pointed out in the decisions of this court. The indictment was not demurred to, nor was any point made with reference thereto prior to the appeal to this court. It is made here for the first time.
While this was an improper allegation of ownership, nevertheless, it was amendable defect, as will be seen by reference to Beach v. State, 173 So. 429; Foster v. State, 52 Miss. 695; Collier v. State, 122 So. 538; Osser v. State, 165 Miss. 680, 145 So. 754.
Amendable defects apparent on the face of an indictment must be availed of by demurrer and not otherwise and then, too, prior to the impaneling of the jury.
Section 1206, Code of 1930.
Such defect cannot be availed of for the first time in this court.
Foster v. State, 52 Miss. 695; Collier v. State, 122 So. 538; Richberger v. State, 90 Miss. 806, 44 So. 772; Winston v. State, 127 Miss. 477, 90 So. 177.
It will be seen that the house was closed when the occupants left and that entrance could be had only by opening the door to go in. There is no showing made as to how the appellant may have effected an entrance. The house was closed when the occupants left and if it were closed, of necessity appellant had to open something to get in.
In Frank v. State, 39 Miss. 705, it was held that the mere raising of a window was sufficient to constitute a breaking. By the same process of reasoning the opening of a door, whether locked or not, would constitute a sufficient breaking.
2 Wharton's Cr. Law, page 1275, par. 973.
Appellant was tried and convicted in the circuit court of Jackson county on an indictment charging him with burglary and larceny, and sentenced to serve a term in the State Penitentiary.
Appellant argues that the case should be reversed on three grounds.
(1) That the indictment improperly alleged the ownership of the house burglarized in "the estate of W.M. Canty;"
(2) That there was no proof of a breaking; and
(3) That he did not have a fair and impartial trial because no instructions were given the jury, either for the state or for himself.
The appellant was not represented by counsel in the lower court. No instructions were given the jury on his behalf, nor for the state; no motion for a new trial was made.
On the first ground the indictment charged the ownership of the dwelling house burglarized to be in "the estate of W.M. Canty." The indictment should charge ownership of the dwelling in burglary indictments to be in a living individual or corporation, but we will pretermit a discussion of this assignment for the reason that no demurrer was filed to the indictment, and no point presented to the lower court. It is probable that the indictment was amendable, but it is unnecessary for us to so decide in view of the conclusion we have reached.
In brief the facts were that there were three or more occupants of a dwelling house in Pascagoula, and one of the occupants testified that when he left the dwelling house, he left it closed, and on returning to the home about nine o'clock at night, he saw a person at the head of the stairs, and he investigated and found the appellant concealed under the bed coverings in one of the upstairs bedrooms. The appellant had on certain clothing, which belonged to W.M. Canty, and also had other property in his possession of a value of $24 or $25. The evidence does not show when the other occupants, the grandmother and nephew, Billy Canty, left the home or when they returned. It does show that at the time the appellant was discovered immediately upon the prosecuting witness entering the house that W.M. Canty was in one of the back rooms. The main witness, H.U. Canty, only testified that when he left the dwelling house in question, it was closed, and when he returned, he had to open the door to go into the house. The only evidence as to the movements of W.M. Canty and the grandmother was that of W.M. Canty, who said: "Well, it was about nine o'clock at night, and we were sitting in the dining room, and I heard my grandmother hollering for help, and I ran in the front of the hall, . . . ."
We think this evidence is wholly insufficient to support the judgment and conviction of burglary. The evidence does not show either an actual or a constructive breaking into the house, it being shown that other people dwelt in this house, and, we think, were present in the house when H.U. Canty, the main state witness, testified that he opened the door. This makes it at least so doubtful that it cannot be said that the breaking is shown with that degree of certainty required by the law. It is essential to show either an actual or constructive breaking into the house to constitute the crime of burglary. Not every entrance into a house by a trespasser is the breaking, and if a door or other opening in the house, such as a window, be open, and the thief enters, this is not breaking into it. In the case of Frank v. State, 39 Miss. 705, this court held that: "The raising of a windowsash which was down, and which was the only obstacle to ingress through the window, and the entry of the accused through the same, is a sufficient breaking in law to constitute burglary." We cannot attribute to the accused super-natural powers in that he entered this building without going through a door or a window, but the State's evidence shows that other people were in the house at the time he was discovered there, and that being true, the evidence was not sufficient to show that other occupants had not opened the door, and the accused passed through an open door into the house. See Wharton's Criminal Law (12th Ed.), Volume 2, p. 1275, sec. 973; 9th Am. Jur., p. 214, sec. 4; and 9th C.J., p. 1076, sec. 133.
In the Frank case it is clear that raising the window by the accused and thereupon entering the house made a case of burglary, but the case at bar does not fall within it for the reason that the method by which accused entered therein is not shown.
The appellant did not request a peremptory instruction, therefore, the case must be remanded for another trial, although the proof in this record fails to make out a case of burglary.
Reversed and remanded.