M.R. Black, of Flora, for appellant.
At common law burglary is the "breaking and entering of the dwelling house of another by night, with intent to commit a felony, whether the intent be executed or not."
Clark and Marshall on Crimes, 539.
The same authority lists as one of the essentials of common law burglary that, "The premises must be the dwelling house of another." The State in the case at bar failed to prove that the house charged to have been burglarized was the dwelling house of anyone, the prosecuting witness, Mrs. Hollingsworth, having moved out of the house the afternoon before the burglary was committed that night.
Henderson v. State, 80 Fla. 491 , 86 So. 439; Smith v. State, 80 Fla. 315 , 85 So. 911.
In order for a house to come within the common-law definition of a dwelling such as to constitute a breaking and entering therein burglary, it must be actually the dwelling of the other at the time of the breaking and entry. The same is true of statutory burglary. The house must be occupied, not merely suitable for occupation. A house "although furnished as a dwelling house, loses its character as such for the purposes of burglary, if the occupant leaves it without the intention to return."
Where there is no proof that the occupier intended to
return to make the house his dwelling the defendant cannot be convicted of burglary.
Scott v. State, 62 Miss. 781 ; 4 R.C.L. 426, 427; 2 East P.C. 496; Randy v. State, 46 Tex.Crim. R., 80 S.W. 526 ; State v. Mason, 74 Ohio St. 65 , 77 N.E. 283; Harrison v. State, 74 Ga. 801 ; State v. Meerchouse, 34 Mo. 344, 86 Am. Dec. 109; Wharton's Criminal Law, sec. 993; Bishop's Statutory Crimes (3 Ed.), sec. 278; 6 Cyc. 185; State v. Warren, 33 Maine 30; State v. Bair, 166 S.E. 369 , 85 A.L.R. 424; Schwabacher v. State, 165 Ill. 618 , 46 N.E. 809; Olds v. State, 95 So. 780 , 19 Ala. App. 162 ; House v. State, 83 So. 337; Dees v. State, 117 So. 369 .
An indictment charging burglary must allege ownership of the building burglarized, and such ownership must be proved as alleged.
Cooksey v. State, 166 So. 388 ; Beach v. State, 173 So. 429 ; Holmes' Common Law, 74; Draughn v. State, 25 So. 153, 76 Miss. 574 ; Wharton, Am. Crim. Law (6 Ed.), sec. 1611.
In Tyler v. State, 11 So. 25, 69 Miss. 395 (1892), the court said, "Where the entire averment, of which the descriptive matter is a part, is surplusage, it may be rejected, and the descriptive averment need not be proved. But it must be proved as charged wherever, if the person, thing, act, place, or time to which it refers was struck from the indictment, no offense would be charged."
In James v. State, 26 So. 929, 77 Miss. 370 (1900), the court said, "It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid."
Hampton v. State, 54 So. 722, 99 Miss. 176 ; Bradley v. State, 90 So. 627, 128 Miss. 114 ; Harrell v. State, 114 So. 815 ; Clark v. State, 57 So. 209, 100 Miss. 751 ; Horn v. State, 147 So. 310 .
The essential thing in an indictment cannot be dispensed with. The requirement is that the offense shall
be certainly described in the indictment, and from it alone the accused must be enabled to prepare for his defense to the indictment, and also to identify the offense should he be subsequently tried for the same offense. In case there is a variance between the indictment and the proof, we have a statute that authorizes the circuit court to hold the accused to answer a propor indictment, that is, hold him to answer such charges as the proof shows to be true. But it does not authorize the court to resolve itself into a grand jury and amend the indictment to charge an offense which the grand jury has not charged.
State v. Traylor, 56 So. 521, 100 Miss. 544 ; Bishop on Statutory Crimes, sec. 230; May's Criminal Law (2 Ed.) 79, 84, 238; Rex v. Napper, 1 Mo. C.C. 44; Russell's On Crimes (5 Ed.), 785.
It appears to be well settled that unless the owner has taken possession of the house by inhabiting it personally. or by some one of his family, it will not have become his dwelling house in the proper meaning of the word, as applied to the offense of burglary.
If a man leaves his house without any intent of living in it again, and means to use it as a warehouse only, and has persons, not of his family, to sleep in it to guard the property, the house cannot be described as his dwelling house.
1 Russell on Crimes (5 Ed.) 803; C.J., Burglary, sections 67 and 111; Draughn v. State, 25 So. 153.
There can be no conviction under an indictment at common law or under a statute for breaking and entering a dwelling house, unless the proof shows that the premises were a dwelling house or a part thereof.
Draughn v. State, 25 So. 153; C.J., Burglary, sec. 112; Hannigan v. State, 31 So. 89, 131 Ala. 29 ; 9 Am. Juris., sec. 22.
It is the animo revertendi that fixes the status and determines whether the house was a dwelling or not.
Olds v. State, 19 Ala. App. 162 , 95 So. 780 ; 4 R.C.L. 426, par. 17.
Under no circumstances does the law make possession of stolen property conclusive proof of guilt, and deduce as a presumptio juris, et de jure, that the party in possession is the thief. This is a deduction which must be made by the jury, or not, as it satisfies their consciences; and however strongly the one fact may follow from the other, they cannot be told that they must infer it, or that the law infers it for them.
Stokes v. State, 58 Miss. 677 ; Matthews v. State, 61 Miss. 155 ; Harper v. State, 71 Miss. 202 , 13 So. 882; Edge v. State, 119 So. 332 .
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is strenuously insisted by appellant here that the building which was burglarized had lost its character of a dwelling house at the time of the alleged burglary. A host of authority is cited on the general proposition that the allegations in an indictment must be strictly proved as alleged. He argues that since the testimony shows that there has been an abandonment of this house as a dwelling house, he could not be convicted of the burglary of a dwelling house. Out of all of the authorities which appellant relies on there is one Mississippi case, to-wit, Scott v. State, 62 Miss. 781 .
A determination of the question presented here must necessarily depend on the facts as they are shown in the record. The record reveals that Mrs. Hollingsworth was in the process of abandoning her dwelling house, but had not completed the abandonment at the time of this burglary.
It clearly appears that Mrs. Hollingsworth was in the process of abandoning the property as a dwelling house. But it likewise clearly appears that the abandonment was not complete or would not be complete until after
she had removed all of her belongings from the house. She left with the intention of returning to complete the removal of her household effects and when they had been removed, then, of course, the abandonment would have been complete and the building would have been no longer a dwelling house. However, the state submits that until the abandonment has been shown to be complete, within the eyes of the law, the house was still the dwelling house of Mrs. Hollingsworth and that a burglary of the building and a stealing therefrom of the household effects would constitute the burglary of a dwelling house within the meaning of the statute covering this sort of a crime. Her absence from the building was purely temporary. And hence, it appears to the writer hereof that there was no intention to abandon the place as a dwelling house until all of the goods had been moved from the house. For this reason the state submits that there was no error committed by the trial judge in refusing to direct a verdict of not guilty for this reason.
Argued orally by M.R. Black, for appellant, and by W.D. Conn, Jr., for the state.