Opinion
No. 27514.
December 3, 1928.
1. TRESPASS. Conviction for willful and malicious trespass requires allegation and proof of ownership of property trespassed on ( Hemingway's Code 1927, section 1191).
Where an indictment is found under section 1389, Code of 1906 (section 1191, Hemingway's 1927 Code), defining willful, malicious trespass, it is necessary to allege and prove ownership of the property trespassed upon, and if the ownership of the property is not proven the conviction will be reversed.
2. CRIMINAL LAW. Affidavit signed by one person, and reciting that another person appeared before justice of the peace, wds defective.
Where the body of an affidavit charges the crime, and recites that "A J P made oath," etc., but said affidavit is signed by another than the one recited, and following the signature of the last-named person is the recital, "Sworn to and subscribed to before me, this the 27th day January, 1928," and signed by the justice of the peace, such affidavit should be amended at the trial so as to show what person actually appeared and was sworn.
APPEAL from circuit court of Scott county, HON. EARL S. RICHARDSON, Special Judge.
W.T. Weir, for appellant.
First, we submit that the affidavit and proof were at variance. We respectfully submit that the charge at best was imperfectly drawn, giving the most charitable view of it that can be consistent with the law. It appears in the body and is so stated therein that A.J. Patrick makes affidavit, etc., and it nowhere is shown that he ever signed the affidavit. It was signed by M.A. Walters.
It further charges that the defendants committed trespass on the property of Scott county. And so far as the record shows was never in fact amended to show that this was the property of the Steele school district. In fact the learned district attorney did not ask that it be amended to say the Steele school district but to say "the property of the school district" without specifying which school district.
The peremptory instruction for and on the part of both defendants ought to have been sustained for the reason that there was no evidence showing that the property was the property of Scott county, and for the further reason that there was no evidence any where to show the least particle of malice toward the county of Scott or any of its citizens or any malice towards the Steele public school district or anyone else. See Barnett v. State, 124 Miss. 884.
Rufus Creekmore, Assistant Attorney-General, for the state.
The first point argued by counsel in his brief is that the affidavit in this case is defective in that in the body thereof it appears that a certain A.J. Patrick made the affidavit, while it was signed by a certain M.A. Walters. Although the affidavit is irregular in this respect, it was not an invalid affidavit. The rule is well settled in this state that it is not even necessary that an affidavit be signed so long as it is sworn to by the affiant before the proper officer. Coppock v. Smith, 54 Miss. 670; Husbands v. State, 105 Miss. 548, 62 So. 418; Winters v. State, 142 Miss. 71, 107 So. 281.
The court will also observe that the defendant did not raise this point in the court below, either by demurrer, or by motion to quash. It is clear that had the point been raised, the proper amendment could have been made and this defect cured. Not having made his objection at the proper time, this defect cannot now be availed of. Hemingway's Code 1927, section 1229, Code of 1906, section 1413.
Counsel next argue that there was a variance between the affidavit in this case and the proof in that the affidavit charged the property to belong to Scott county, while the proof showed it to be the property of the Steele school district. Counsel say that the motion of the district attorney to amend and the action of the court granting the same is of no effect, because the affidavit was not, in fact amended. The state does not desire to take issue with counsel on this proposition but, conceding his argument in that respect to be correct still there is no variance shown between the allegations in the indictment and the proof. The testimony of Mr. E.B. Guthrie, the superintendent of the Steele school shows that the Steele school is a rural school supported by the county levy for school purposes. The district was created under the law with reference to the creation of rural public schools by the county school board, and the tax for the support and maintenance of the school is levied on the entire property in the county, as is provided by the school code. There can be no question but that this schoolhouse was the property of Scott county, and that there was no variance in this respect. See, also, McKinnon v. Gowan Brothers, 127 Miss. 545, 90 So. 243, which holds that land donated to trustees for a county agricultural school is donated to and belongs to the county.
Counsel next argues that the evidence in this case was insufficient to sustain the verdict of guilty, because the state has failed to prove that the trespass was willful or malicious. In support of this argument, counsel cites Barnett v. State, 124 Miss. 884, 87 So. 421, which case held that a person who was tried under the statute here in question could not be convicted where the alleged trespass was by cutting trees on land which had been in his possession for thirty-seven years and who claimed to own the land. The court there held that the evidence negatived any willful or malicious intent.
In the case at bar, the testimony shows that the defendants willfully trespassed on property not their own, but which was the property of Scott county, and while thereon destroyed a part of the property. A person's intent can be determined only from his actions, and if the willful going upon this property by the defendant and the destroying and breaking of the windows in the building does not constitute willful or malicious intent within the meaning of the statute, then such intent could never be proven in any case.
The prosecution in this case was for willful, unlawful, and malicious trespass under section 1191, Hemingway's 1927 Code (section 1389, Code of 1906), which reads as follows: "Any person who shall be guilty of a willful or malicious trespass upon the real or personal property of another, for which no other penalty is prescribed, shall, upon conviction, be fined not exceeding five hundred dollars, or imprisoned not longer than six months in the county jail, or both."
The prosecution originated in the justice court, and the affidavit made before the justice of the peace read as follows: "Before J.C. Bailey a J.P. of the county of Scott A.J. Patrick makes oath that Frank Adams and Jeffy Adams on or about the 28th day of Jan. 1928, in Dist. No. 5 of said county did unlawfully, willfully and maliciously trespass upon the Steele School building, the property of Scott county, and did then and there willfully, unlawfully and maliciously damage said school building in the sum of sixty dollars against the peace and dignity of the state of Mississippi."
It will be noted that this affidavit, in the body of it, recites that A.J. Patrick made oath before the justice of the peace that the defendant committed the acts complained of, but the affidavit is signed by M.A. Walters, affiant; and then follows the words: "Sworn to and subscribed before me this the 27th day of Jan., 1928. I.C. Bailey, J.P."
There was no demurrer to this affidavit, and the case proceeded to trial. At the end of the state's testimony, each of the defendants made a motion for a peremptory instruction, which motions the judge overruled. The defendants thereupon produced their witnesses, whose testimony tended to show that the defendants were not present and did not commit the acts complained of.
The testimony on behalf of the state was sufficient to identify the defendants with the commission of the acts — that one of the defendants remained in his car while the other defendant knocked out the sash in the schoolhouse windows; that both defendants were traveling together in the car, and, as the witness approached the schoolhouse, both ran away in the car.
The state failed to produce any proof as to the ownership of the schoolhouse; the only proof introduced showed that the building was used as a schoolhouse in a school district of Scott county, Miss. At the conclusion of the state's evidence, the district attorney, as shown by the stenographer's notes, verbally moved the court for permission to amend the affidavit so as to charge the ownership of the schoolhouse in the school district, and the court stated that he would allow the motion, which was excepted to; but the record does not show that any order was entered on the minutes of the court, allowing the amendment to the affidavit.
It is necessary for an amendment to be entered on the minutes of the court to give validity to the proceeding. Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357, and authorities cited therein.
The affidavit on its face does not appear to have been actually changed by the district attorney. We think, under the above statute, it is necessary to both allege and prove the ownership of the property trespassed upon. It was alleged, but not proven, to be in the county; and there was failure to prove title in the school district. The titles to many school lands are in the counties, but in many other cases the titles are in the trustees of the school districts; and we are unable to say that the property here involved, as a matter of law, belonged to the county. For this reason, the judgment of conviction must be reversed.
We desire to call attention to the fact that the affidavit was signed by one person, whereas it is recited in the body of the affidavit that another person appeared before the justice of the peace. This defect should be corrected on a retrial of the cause to show who really appeared and made oath before the justice of the peace.
Reversed and remanded.