Summary
In Brown v. State, 209 Miss. 636, 640, 48 So.2d 131, 132 (1950), the Court relied on Cannon to find that another indictment omitting the purpose for which the goods were kept was fatally defective.
Summary of this case from Forkner v. StateOpinion
No. 37642.
October 23, 1950.
1. Burglary — indictment — allegations as to property kept in building.
Under the code section the breaking and entering of a house of the character therein mentioned with intent to steal therein is burglary only where personal property is kept therein for use, sale, deposit or transportation, and the purpose for which the goods, etc., are kept in the building is one of the elements of the offense and must be alleged in the indictment in the words of the statute or their equivalent, and unless so done the indictment is demurrable. Sec. 2043 Code 1942.
2. Burglary — indictment — school building — ownership.
A burglary indictment which charged that the building alleged to have been burglarized was the Prentiss High School building, the property of the Prentiss Consolidated School District, should have charged that the building was the property of the school trustees, naming them, and their successors in office, for the use and benefit of the Prentiss Consolidated School District.
Headnotes as approved by Arrington, C.
APPEAL from the circuit court of Jefferson Davis County; J.C. SHIVERS, Judge.
Martin Farr, for appellant.
We challenged the indictment by demurrer on two grounds, specifically to wit: 1st. The indictment does not allege the ownership of the property burglarized or stolen. 2nd. That the indictment fails to conform to Sec. 2043, under which it was drawn, particularly in that it failed to allege the property alleged stolen was kept therein "for use, sale, deposit or transportation", — a most necessary allegation and without which the indictment is void.
It is stated in James v. State, 77 Miss. 366, on page 372: "It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid. 3 Ency. Pl. Prac., p. 358, notes, 3, 4; 2 Bishop New Crim. Procedure, Sec. 138 . . ."
Our Court, over all the years, has held to this principle of law; and in the recent case of Crosby v. State, 191 Miss. 173, 2 So.2d 813, it is stated that it is essential that an indictment charging burglary allege the ownership of the building burglarized and that the failure of an indictment to contain such an allegation was fatally defective and could not be remedied by amendment. The Court cited there a long list of citations. See Cooksy v. State, 175 Miss. 82, 166 So. 388.
It is most respectfully submitted that a consolidated school district cannot own property as such. The title, if any, is in the trustees, and no effort was shown by the State to prove ownership as is required by law.
This very question has been passed upon by this Court and adversely to the State here. In the case of Sheedy v. State, 152 Miss. 82, 118 So. 372, there was an indictment, in substance, alleging that defendant ". . . did set fire to and burn a certain public building, to-wit: a school-house, the property of the Union School District in said county, contrary . . ." As shown this was a prosecution for arson, but the principle there controls here as to the proof of the ownership, our Court stating: "Under the statute public school districts are not declared to be bodies corporate. They are mere agencies of the State, and have only such powers as are conferred on them by law. We find no power, and have been cited to none, authorizing the public school districts to buy and sell property or to acquire and own property as such. The title to the property is in the individuals named in the deed and their successors to office and the indictment should have so alleged."
In Scarbrough v. McAdams Consolidated School District, 124 Miss. 844, 87 So. 140, it was held that a consolidated school is a common school within Constitution 1890, Sec. 90 (p), prohibiting local or special laws for management or support of common schools. A consolidated school district is simply a common school district with added territory, on the whole of which there is a special tax. The countywide tax for common schools covers all the territory within each consolidated school district. The indictment should allege the ownership of the house to have been burglarized in a living individual, or corporation. 183 Miss. 327, 184 So. 87.
Please note these words in the indictment: ". . . which goods, wares, chattels, merchandise and personal property were located in said school building . . ." But nowhere in the indictment do we find any of these words: ". . . kept for use, sale, deposit or transportation . . ."
These words, last referred to, are essential to charge the crime of burglary of a building of this kind under the statute, Sec. 2043. This proposition of law has been definitely decided by this Court in Cannon v. State, 133 Miss. 567, 98 So. 63. The indictment there charged ". . . did feloniously and burglariously break and enter the corn pen or house of one Forrest Willis, with the felonious intent, the goods and chattels of said Forrest Willis, then and there kept, to feloniously and burglariously take, steal and carry away."
Our Court said: "Under the statute the breaking and entering of a house of the character therein described with intent to steal therein is burglary only where goods, merchandise or other valuable things are kept `for use, sale, deposit or transportation'. Consequently the purpose for which the goods, etc., are kept in the building is one of the elements of the offense created by the statute, and must be alleged in the indictment either in the words of the statute or their equivalent." Our Court said that the demurrer should have been sustained and reversed the case. As there, this is not a dwelling.
Please note in the indictment in the case at bar, it simply charges "which goods, chattels, wares, merchandise, personal property were located in said school building. . . ."
In charging burglary under Sec. 2043, Code 1942, it is necessary to allege the purpose for which the personal property is kept. There is no allegation here, either in the words of the statute or in any equivalent language, showing purpose for which the goods were kept. Nothing is charged as to the purpose.
George H. Ethridge, Assistant Attorney General, for appellee.
The appellant appeals from a conviction and sentence to a three-year term in the state penitentiary for the crime of burglary. One of the errors assigned is the overruling of a demurrer to the indictment. The appellant was indicted under Section 2043, Mississippi Code of 1942, which provides: "Every person who shall be convicted of breaking and entering, in the day or night, any shop, store booth, tent, warehouse, or other building or private room or office therein, ship, steamboat, flatboat, or railroad car, in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation. . . ."
The indictment, omitting the formal parts, is as follows: ". . . did then and there wilfully, unlawfully, feloniously and burglariously break and enter in the night time the Prentiss High School building, the property of Prentiss Consolidated School District, with the felonious and burglarious intent to steal, take and carry away the goods, chattels, wares, merchandise, and personal property of the said Prentiss Consolidated School District, which goods, wares, chattels, merchandise, and personal property were located in said school building . . ."
(Hn 1) One of the grounds of the demurrer is that the indictment fails to allege that the property alleged to have been taken was kept therein "for use, sale, deposit, or transportation". In the case of Cannon v. State, 133 Miss. 567, 98 So. 63, 64, the Court, in passing upon this identical question, said: "Under this statute, the breaking and entering of a house of the character therein described with intent to steal therein is burglary only where goods, merchandise, or other valuable things are kept therein `for use, sale, deposit or transportation.' Consequently, the purpose for which the goods, etc., are kept in the building is one of the elements of the offense created by the statute, and must be alleged in the indictment either in the words of the statute or their equivalent. Roberts v. State, 55 Miss. 421; 9 C.J. 1041."
The demurrer also challenges the indictment on the ground that the ownership of the school building was not properly alleged.
(Hn 2) The indictment should also have charged that the building which was alleged to have been burglarized was the property of the school trustees (naming them), and their successors in office, for the use and benefit of the Prentiss Consolidated School District. Of course, on the question of proof, the trustees who were custodians of the building and vested with the legal title thereto should be able to testify whether or not the building in question is located in the said school district.
Since the case is to be reversed because of the insufficiency of the indictment, it is unnecessary that we discuss either the facts or the law in connection with the other assignments of error, except to say that the Court does not think that any of them are well-taken, and we think that the evidence would all be competent in a trial on a sufficient indictment. The demurrer should have been sustained.
Reversed and remanded.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is reversed and remanded.