Opinion
No. 35715.
November 27, 1944.
1. LARCENY.
Under statute making the stealing of any pneumatic rubber tire or tube grand larceny, the stealing of such tires of any value is grand larceny, and an indictment under such statute does not have to state the value of tires (Code, 1942, sec. 2241).
2. HABEAS CORPUS.
Where proceedings were not absolutely void, either for lack of jurisdiction or other cause, writ of habeas corpus could not perform functions of appeal.
3. LARCENY.
Failure of indictment charging accused with stealing three pneumatic rubber automobile tires of some value to designate tires as personal property was not a fatal defect, where description of property showed that it was personal property (Code 1942, sec. 2241).
APPEAL from the circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
C.F. Pittman, of Hattiesburg, for appellant.
The indictment fails to state any value, it fails to state that the alleged property stolen was "personal property" and fails to describe the property with any sort of certainty. Under such conditions, we insist the indictment is void.
Noonan v. State, 1 Smedes M. (9 Miss.) 562; Murphy v. State, 24 Miss. 590; Garrard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb v. State, 37 Miss. 383; Williams v. State, 42 Miss. 328; Riley v. State, 43 Miss. 397; Thompson v. State, 51 Miss. 353; Jackson v. State, 173 Miss. 776, 163 So. 381; McDowell v. State, 74 Miss. 373, 20 So. 864; Code of 1942, Secs. 2240, 2241, 2242; Constitution of 1890, Sec. 26; 27 Am. Jur. 644, Sec. 83.
When an indictment imperfectly charges an offense, but is not absolutely void, its validity must be raised either by demurrer or by motion to quash; but, where it absolutely charges no offense and is void, the question may be raised upon appeal.
Reed v. State, 171 Miss. 65, 156 So. 650; City of Lumberton v. Frederick, 165 Miss. 456, 143 So. 488.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Habeas corpus cannot be made to perform the functions of a writ of error or an appeal.
State v. Boyd, 110 Miss. 565, 70 So. 692; Ex Parte Golding, 148 Miss. 233, 114 So. 385; Lewis v. State, 153 Miss. 759, 121 So. 493.
Where appellee has moved in arrest of judgment and thereby expressly called upon the county court to consider and adjudge the point whether the verdict was void, the point thus raised being one which was within the jurisdiction of the county court to adjudge and determine, an adverse judgment by the county court can be reviewed only on appeal, and not by habeas corpus.
Kelly, Sheriff, v. Douglas, 164 Miss. 153, 144 So. 237.
In the case at bar the record shows that in the motion for new trial filed, one of the grounds was that the indictment failed to charge a felony, which motion was overruled by the court. The appellant having appealed his case from the circuit court of Jones County to the Supreme Court of the State of Mississippi, where it remained on the docket for eleven months, and suffered it to be dismissed for want of prosecution, he is now precluded and estopped by the judgment therein, and especially in a habeas corpus proceeding.
Ex parte Golding, supra.
A reading of the indictment shows that it contains all of the essential elements of a crime and is a good indictment, and especially so since it was not demurred to. Counsel's main complaint is that the indictment does not set out the value of the tires or, in other words, that it does not charge grand larceny for the reason that it does not charge that the tires were worth more than twenty-five dollars, and a further criticism is that the indictment does not charge that the tires were personal property. There is no merit to this criticism.
Jones v. State, 51 Miss. 718; Golden v. State, 63 Miss. 466; Code of 1942, Sec. 2241.
Appellant, in this habeas corpus proceeding, seeks to have himself released from the Mississippi State Penitentiary, to which he was sentenced for three years upon his conviction in Jones County of grand larceny in the stealing of automobile tires. His petition for discharge was denied and he appeals. He contends that his conviction was illegal and void because the indictment did not state the value of the tires nor that they were personal property.
The indictment charges him with stealing "three pneumatic rubber automobile tires of some value . . .," naming the owners of the property, and reciting that the serial numbers of the tires were unknown to the grand jurors.
The indictment was under section 2241, Code of 1942, which reads:
"If any person shall feloniously take, steal, and carry away any automobile, truck, bus, or other motor vehicle, or any pneumatic rubber tire or tube of another, he shall be guilty of grand larceny, and if found guilty shall be punished as in other cases of grand larceny.
"That this act be in force and effect only so long as the United States of America is engaged in World War II."
Under that section the indictment did not have to state the value of the tires. It does say they were of some value. The stealing of such tires of any value is grand larceny. Golden v. State, 63 Miss. 466. Incidentally, the proof on the original trial showed the tires to be worth $125.
In addition, appellant, as defendant in the original trial, did not demur to the indictment, or make any point on such trial of its insufficiency. He did make a motion for a new trial in which he raised this question, and, therefore, it was involved in the appeal. The conviction was had at the October, 1942, term of circuit court, and the appeal was dismissed September 27, 1943, for lack of prosecution. Where the proceedings are not absolutely void, either for lack of jurisdiction or other cause, which is not the case here, the writ of habeas corpus cannot perform the functions of an appeal. State v. Boyd, 110 Miss. 565, 70 So. 692; Ex parte Golding, 148 Miss. 233, 114 So. 385; Kelly, Sheriff, v. Douglas, 164 Miss. 153, 144 So. 237.
The failure of the indictment to designate the tires as personal property was not a defect. The description of the property itself shows that it was personal property. Jones v. State, 51 Miss. 718.
Affirmed.