Opinion
No. 30503.
April 10, 1933.
BURGLARY.
Evidence in burglary trial held sufficient to show existence of corporation and its ownership of building entered as alleged in indictment.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
Dudley Conner, of Hattiesburg, for appellant.
It is a well settled rule that ownership must be alleged in the indictment for burglary and proved.
There is no effort to prove that the Hattiesburg Ice Fuel Company is an existing corporation.
There must be proof of the existence of the corporation, and although the failure to submit the proper proof of corporate existence may be fatal upon the appeal, it is only necessary to submit evidence of the de facto character of the corporation.
4 R.C.L. 434.
It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid. And, when a corporation is alleged to be the owner, there must be proof of the existence of the corporation.
James v. State, 77 Miss. 370, 26 So. 929, 78 A.S.R. 527. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The case of James v. State, 77 Miss. 370, is authority for the proposition that the proof need only disclose a de facto corporation and that it is sufficient if it is shown that it was known and acting as a corporation.
The indictment in this case charges that the Hattiesburg Ice Fuel Company was a corporation. The proof, as a whole both for the state and from the witnesses for the defendant, discloses that the Hattiesburg Ice Fuel Company was a corporation and operating in the City of Hattiesburg. This proof is uncontradicted and there is not the slightest bit of evidence to refute it.
Will Barnes was indicted, convicted, and sentenced to serve four years in the penitentiary, for the burglary of a building owned by the Hattiesburg Ice Fuel Company, a corporation, in which was stored gasoline, oil, and other property used by said corporation.
On the trial, it appeared that a night watchman of the corporation in making his rounds first observed that the building was intact, but about an hour and a half later he found that a plank on the side of the building had been ripped off, and in going closer found the appellant inside the building, ordered him twice to come out, and finally cocked his pistol, and, at the click thereof, the appellant cried out, "I'm coming," and did come out. The night watchman took the appellant to the police station and turned him over to the authorities.
The appellant contended that he did not break into the building; that he had formerly worked for the Firm Fuel Ice Company, a corporation which had owned the property involved prior to the ownership of the Hattiesburg Ice Fuel Company, and that he was merely passing the building that night when he was arrested as a trespasser.
The only point involved in this appeal is whether the evidence showed that the property was owned by the Hattiesburg Ice Fuel Company.
It was directly testified by the witness who made the arrest that the property belonged to the Hattiesburg Ice Fuel Company, a corporation. The vice president, who was also a witness, testified that the Hattiesburg Ice Fuel Company was a corporation, and had taken over all the assets of the Firm Fuel Ice Company, a predecessor in title of the Hattiesburg Ice Fuel Company, but he also testified that these two were separate corporations.
There is no proof that there was no such corporation as the Hattiesburg Ice Fuel Company.
It was sufficient to prove the existence of the corporation and its ownership of the property, in the manner in which it was done at the trial of this case, and therefore the judgment of the court below will be affirmed.
Affirmed.