Opinion
No. 38155.
December 10, 1951.
1. Indictments — burglary — value.
The statute which prescribes the elements of burglary does not require the indictment to state the value of the personal property intended to be stolen. Sec. 2043, Code 1942.
2. Burglary — value — trial.
There is no ground for error when the indictment in burglary charged that the value of the money taken was $80.00 but the proof showed it to be $50.00.
3. Burglary — evidence — undenied statement in presence of accused.
Where three persons were arrested for burglary and on being carried to jail, and in effect searched, one of them stated that $50.00 of the money taken from him was the property of accused and the second party stated that he had seen accused deliver the money to the party first mentioned, and other witnesses testified that these statements were made in the presence of and near the accused in ordinary tones so that accused was bound to have heard them, it being further shown that he had the ordinary capacity to hear, and that he did not deny such statements, the statements were competent as evidence.
4. Evidence — oral — contents of destroyed letter.
Where accused while in jail had written a letter from which a reasonable inference of his guilt could be drawn, and it was shown that the letter had been destroyed, oral evidence of its contents was competent.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
C.L. Stockdale, and Bidwell Adam, for appellant.
Cited and discussed the following:
Anderson v. State, 82 Miss. 784, 35 So. 202; Sec. 26, Constitution 1890; Ladner v. State, 9 So.2d 878; Matthews v. State, 39 Tex.Crim. R., 47 S.W. 647, 48 S.W. 189; Rutherford v. State, 196 Miss. 321, 17 So.2d 803; State v. Hoyer, 40 La. Ann. 744, 4 So. 899; Thomas v. Williamson, 185 Miss. 83, 86, 187 So. 220; Upton v. State, 192 Miss. 339, 6 So.2d 129; Walthour v. State, 114 Ga. 75, 39 S.E. 872, 14 Am. Crim. Rep. 472.
Joe T. Patterson, Assistant Attorney General, for appellee.
Cited the following:
Bone v. State, 207 Miss. 868, 43 So.2d 571; Thurmond v. State, 53 So.2d 44.
Appellant was convicted of burglary and sentenced to the state penitentiary for seven years. He raises two questions we deem sufficiently serious to discuss and decide. The first relates to the form and substance of the indictment. The second pertains to the admissibility of evidence.
As to the first question, no demurrer or motion was filed to the indictment and the failure to so raise the questions could properly dispose of them on this appeal. However, we will deal with them as raised.
The State obtained an instruction properly setting forth the essentials of burglary as to the breaking and entering and the intent, but the personal property, the object of the intent, was described as "money of the value of $50.00 or more, cigaretts and a pistol". This instruction is here attacked because the indictment, as appellant contends, did not "allege, charge or state the value of a single article alleged to have been stolen or carried away". There are two answers to the contention: (Hn 1) The first is that Section 2043, Mississippi Code 1942, prescribing the elements of burglary, does not require the indictment to state the value of the personal property intended to be stolen. Bone v. State, 207 Miss. 868, 43 So.2d 571. (Hn 2) The second reason the contention is not well taken is the fact that the indictment did allege the value of the money to be $80.00 and the proof shows that at least $50.00 of such money was actually stolen and carried away.
Appellant next raised a question as to the indictment by requesting a peremptory instruction he said should have been granted "in view of the indictment". That seems to be upon the idea the indictment was void. The indictment properly charged the crime of burglary.
(Hn 3) Appellant, C.B. Jones and Jack Dunnigan were arrested for this crime. They were carried to the jail in Meridian, where they were required by the officers to deliver over such personal property as they had upon their person. On that occasion Dunnigan stated, according to the State's proof, that $50.00 of the money taken from him was the property of appellant. Objection was made to this and the trial judge heard considerable testimony in the absence of the jury. He finally admitted it. Appellant says that was reversible error. C.B. Jones had testified he saw appellant deliver to Dunnigan $50.00 of the stolen money at the time the parties divided it. In addition to this various witnesses testified that the statement by Jones was made in the presence of appellant and he did not deny the statements. Witnesses said the statements were made in ordinary tones and within four to six feet of appellant, and that, as a person of ordinary hearing, which it was shown appellant possessed, he was bound to have heard the accusation. The statements were competent. Thurmond v. State, Miss., 53 So.2d 44.
(Hn 4) Proof was made that appellant, while in jail, had written a letter in which he said that he understood that Jones "had squealed on him, and if he had it was going to be too bad for him". This was objected to on the ground the letter itself would have been the best evidence. However, it was shown that the letter had been destroyed and could not be produced. The oral testimony was then competent.
Some other asserted errors are mentioned but none are well taken. It might be added that the evidence overwhelmingly established the guilt of appellant.
Affirmed.
Hall, J., took no part in the decision of this case.