Summary
In Hawkins v. State, 193 Miss. 586, 10 So.2d 678 (1942), the district attorney was allowed to cross examine the defendant as to the truthfulness of his confession.
Summary of this case from Rhone v. StateOpinion
No. 34985.
November 30, 1942.
1. CRIMINAL LAW.
Where indictment charged a breaking and entering of house with intent to steal therein, accused was not prejudiced by an amendment to conform to the proof substituting for charge that a vending machine of stipulated value was stolen the allegation that a slot machine containing money was stolen, since indictment was sufficient to support conviction for burglary without allegations as to property actually stolen and such allegation should be treated as "surplusage."
2. BURGLARY.
That burglary indictment in addition to alleging the breaking and entering of house with purpose of stealing within the building alleged that specified article was stolen therefrom did not require that evidence be confined to proof of attempt to steal the article specified in the indictment.
3. BURGLARY.
In prosecution for burglary in the course of which a slot machine containing money was stolen, it was immaterial whether slot machine which under statute could not constitute "property" could be the subject of "larceny," since money in the machine was "property" and was not withdrawn from that category by statute making it subject to seizure by any police officer (Laws 1938, chap. 353, sec. 2; Code 1930, sec. 966).
4. CRIMINAL LAW.
Submission to jury over objection of court reporter's testimony from stenographic notes of cross examination of accused on preliminary inquiry in jury's absence into competency of alleged confession was error requiring reversal of conviction, where accused did not testify on the merits but such cross-examination without objection by defense counsel included an inquiry into accused's guilt.
5. CRIMINAL LAW.
Accused by testifying on preliminary inquiry in absence of jury as to the competency of alleged confession did not thereby subject himself to cross-examination on the question of his guilt vel non of the crime charged.
6. CRIMINAL LAW.
Where accused testified on preliminary inquiry into competency of alleged confession, failure of defense counsel to object to extension of cross-examination of accused to include an inquiry into his guilt did not constitute a "waiver" of the right to object when such evidence was offered to jury by state as part of its evidence in chief by means of testimony of court reporter from his stenographic notes.
APPEAL from the circuit court of Bolivar county, HON. WM. A. ALCORN, JR., Judge.
W.B. Alexander, of Cleveland, for appellant.
The appellant contends that the court committed error in permitting an amendment by the state to show the property stolen as being "one slot machine containing good and lawful money of the United States" instead of "one vending machine of the value of $75.00 in good and lawful money of the United States." It is not unlawful to steal a slot machine. It is unlawful to steal a vending machine. The crime of burglary consists of two distinct elements (1) the unlawful breaking and entering, and (2) the intention on the part of the person entering and breaking to commit a crime on the premises. The proof for the state showed that nothing whatever was stolen from Sadie Banks' home except the slot machine and the nickels displayed in it as a lure or attraction. Sadie Banks and Buster Sheridan testified explicitly that they searched her premises and nothing was missing except the slot machine. Therefore it cannot be assumed that defendant intended to steal anything except the particular property which was missing. Furthermore, the witness Walt states that defendant in his confession said he knew Sadie had a slot machine and that they went and got it, this being an admission that they intended to steal the slot machine and nothing else.
If the amendment had merely permitted the changing of the words "vending machine" to "slot machine," it might have been permissible, in which event the indictment would be most clearly demurrable. To permit the addition of the words "containing good and lawful money of the United States" makes a brand new indictment never voted, intended or returned by the Grand Jury. In effect a fraud was perpetrated on the Grand Jury in leading them to believe that a vending machine was stolen, when in fact the property stolen was property not susceptible of larceny at all under our statutes, and most certainly the Grand Jury would not have voted an indictment for intending to steal property not the subject of larceny.
The court permitted unlimited examination of defendant in absence of the jury. No one would reasonably contemplate that the court would permit all of this testimony to be read to the jury. This was compelling the defendant to give evidence against himself.
There is no property in a gambling device, so declared expressly by statute. The money used as a lure or attraction, in the slot machine, is a part of the gambling device, part and parcel of it. It is contraband and subject to seizure without a warrant, and there is no property in it.
Code of 1930, Sec. 966; Laws of 1938, Ch. 353.
See also King v. McCrory, Marshall, 179 Miss. 162, 175 So. 193; State v. Wilmore, 9 Ohio Dec. Reprint 61, 10 Crim. Law Bulletin 321; People v. Bailey, 82 Cal.App. 700, 256 P. 281; State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772; 15 C.J.S. 1139, note.
Greek L. Rice, Attorney-General, by Russell Wright, Assistant Attorney-General, for appellee.
I am confident that the court, upon a reading of the record, will determine for itself that the error of the court in permitting a witness to be cross-examined at length by the district attorney, and then by permitting such cross-examination to be read at length by the stenographer to the jury, including that part wherein the district attorney requested the court to permit the jury to be brought out and hear the defendant's testimony, and requiring an objection on the part of the defendant's counsel, was an error so grave that the court must of necessity reverse this case. I have never heard of such procedure in any courtroom, and I agree with counsel that this error is of such nature as to require the court to reverse. It violated Section 26 of the Constitution, and, in my opinion, the record was properly made. This error I must, therefore, confess.
No error was committed in authorizing the amendment, because the gist of the offense was burglary, and under the larceny count it would not matter whether the machine was called a slot machine or vending machine. In either event, it would have been burglary.
A thing may be the subject of larceny although it is unlawful for a person having such thing to sell or otherwise dispose of it or to use it for certain purposes, and even though it is unlawfully possessed at the time of the taking because kept or used for illegal purposes or because possession thereof is expressly prohibited by law. The authorities are in substantial agreement that such facts do not affect the character of the article as property which may be the subject of larceny. Thus, a pistol or other dangerous weapons which cannot be used or carried, gambling apparatus, the possession of which is prohibited, and intoxicating liquors, outlawed or made contraband by statute, are property to an extent sufficient to satisfy the requisites for the subjects of larceny. Moreover, the fact that the possessor of such an article has no enforceable property rights therein does not require a contrary rule. The article may be the subject of larceny notwithstanding express statutes to the effect that no property rights exist in such article illegally possessed, since the purpose of such statute is to limit the civil rights of the possessor, not the criminal liabilities of others.
People v. Odenwald, 104 Cal.App. 203, 285 P. 406, 104 Cal. 211, 286 P. 161; Smith v. State, 189 Ind. 253, 118 N.E. 954, L.R.A. 1918D, 688; People v. Kilpatrick, 79 Colo. 303, 245 P. 719; 12 C.J.S. 667; 36 C.J. 747; 32 Am. Jur. 985; 75 A.L.R. 1479.
The appellant was convicted of burglary. The indictment alleged that he "did then and there, wilfully, unlawfully, feloniously and burglariously break and enter in the nighttime the dwelling house of one Sadie Banks, with the felonious and burglarious intent of the said Willie Lee Hardy, Solomon Hawkins and George Williams to then and there wilfully, unlawfully, feloniously and burglariously take, steal and carry away the goods, wares and chattels of the said Sadie Banks and Bootie Odom in said dwelling house then and there being, and one vending machine of the value of Seventy-five Dollars in good and lawful money of the United States of America, of the personal property of the said Bootie Odom, in said dwelling house then and there being, they, the said Willie Lee Hardy, Solomon Hawkins and George Williams, did then and there wilfully, unlawfully, feloniously and burglariously take, steal and carry away." After the evidence came in, the indictment was amended to conform thereto by eliminating the words "one vending machine" therefrom and inserting in lieu thereof the words "one slot machine containing good and lawful money of the United States of America." No harm was done the appellant by the making of this amendment for it added nothing in legal effect to the charge of burglary as it appeared originally in the indictment. That the breaking and entering of the house was with "the purpose of stealing within the building" was sufficiently alleged to support a conviction of burglary in the original indictment without the words therein "and one vending machine" which could and should have been treated as surplusage as should also the language inserted in the indictment in lieu thereof. Brown v. State, 72 Miss. 990, 18 So. 431; Draughn v. State, 76 Miss. 574, 25 So. 153. The evidence need not have been confined to an attempt to steal the articles specified in the indictment. Wood v. State, 155 Miss. 298, 124 So. 353.
The slot machine was an ordinary gambling machine and contained in a receptacle in it was $18 or $20 in nickels visible to those who played it through a glass and placed there for the purpose of inducing persons to play the machine. Appellant says that neither the slot machine nor the money contained in it were property and therefore not the subjects of larceny, from which it follows that the indictment did not charge and the evidence does not disclose that the house was entered by the appellant with a criminal intent.
Chapter 353, Laws of 1938, provides that "no property right shall exist in any" slot machine, but it will not be necessary for us to decide whether an article that is not property can be the subject of larceny for the money in this machine was property and was not withdrawn from that category by Section 966, Code of 1930, under which it could have been seized by any police officer.
After introducing evidence of the breaking and entering of the house by the appellant and the taking by him therefrom of the slot machine and the money in it the state offered and was permitted to introduce a confession said to have been made by the appellant to the marshal of the town of Cleveland. When the confession was offered the jury was retired and its competency was inquired into. During the course of the inquiry the appellant himself testified, denied making the confession and said the marshal tried to induce him to admit that he committed the burglary by telling him that if he would admit it "it would be more light on you" and "if you don't, I am going to take you out and beat you until you do tell." The appellant was then cross-examined by the District Attorney briefly as to what occurred at the time the state witness said that the confession was made. He then departed from that inquiry and proceeded to try to elicit from the appellant an admission of the commission by him of the burglary or of something that might indicate that he was lying when he denied having committed it. This cross-examination fills 112 pages of the record and after a brief re-direct examination by the appellant's attorney he was again examined by the District Attorney for a short time. After the jury returned to the courtroom and while the state was introducing its evidence in chief, over the objection of the appellant's counsel, the court permitted the District Attorney to introduce the Court Reporter who read to the jury from his stenographic notes the cross-examination of the appellant by the District Attorney on the preliminary inquiry into the competency of his alleged confession. The appellant did not testify on the merits. The Attorney-General very properly confesses that this procedure was erroneous for which the judgment of the court below must be reversed. One sufficient reason therefor is that the evidence on the preliminary inquiry into the competency vel non of appellant's confession should have been limited thereto. The appellant had the right to testify thereon but did not thereby subject himself to examination by the state on the question of his guilt vel non of the crime with which he is charged. It is true that most of this cross-examination of the appellant was not objected to by his counsel, but that is of no consequence because failure to object there did not constitute a waiver of the right to object when the evidence was offered to the jury.
Reversed and remanded.