POE v. STATE | 159 Miss. 76 | Miss. | Judgment | Law | CaseMine

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CITATION CODES

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DOCKET NO.

No. 29170.

ATTORNEY(S)

W.B. Nichols, of Jackson, for appellant. The court erred in granting instruction No. 2 for the state which is as follows: The court instructs the jury for the state that although they may have a reasonable doubt as to the breaking and entering of the Coldwater Oil Company building, yet, if they believe from the evidence beyond a reasonable doubt that the defendant Perry E. Poe did take, steal and carry away brass fixtures, valve wrenches and other fixtures, the personal property of C.F. Sherard, Jr., then it is your sworn duty to find the defendant guilty of larceny, and if they further believe from the evidence beyond a reasonable doubt that the property so taken, stolen and carried away was of the value of twenty-five dollars or more, you should return a verdict finding the defendant guilty of grand larceny, and, if they believe from the evidence beyond a reasonable doubt that the value of the property was less than twenty-five dollars, then you should return a verdict finding the defendant guilty of petty larceny. It will be noticed that no where in this instruction is the word "feloniously" used. Section 1030, Hemingway's Code of 1927; Section 1031, Hemingway's Code of 1927; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Hamilton v. State, 35 Miss. 214; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; Akroyd v. State, 107 Miss. 51, 64 So. 936. W.A. Shipman, Assistant Attorney-General, for the state. No judgment shall be reversed on the ground of misdirection to the jury unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice. Rule No. 11 of the Supreme Court. An examination of the entire record, we submit, will show that the misdirection by the court below to the jury in the matter of defining the offense of larceny does not result in a miscarriage of justice; that the evidence on behalf of the state shows the guilt of the appellant beyond a reasonable doubt of the offense of larceny; that the omission by the court below of one essential ingredient of the crime of larceny in the definition thereof contained in instruction number two for the state is purely technical, and that the guilt of the appellant of the crime which the instruction sought to define is manifestly shown by the testimony.

JUDGES

Cook, J., delivered the opinion of the court.

ACTS

No Acts

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Miss.

POE v. STATE

(Feb 2, 1931) Copy Cite

159 Miss. 76 132 So. 92

Case Information

CITATION CODES

DOCKET NO.

No. 29170.

ATTORNEY(S)

W.B. Nichols, of Jackson, for appellant. The court erred in granting instruction No. 2 for the state which is as follows: The court instructs the jury for the state that although they may have a reasonable doubt as to the breaking and entering of the Coldwater Oil Company building, yet, if they believe from the evidence beyond a reasonable doubt that the defendant Perry E. Poe did take, steal and carry away brass fixtures, valve wrenches and other fixtures, the personal property of C.F. Sherard, Jr., then it is your sworn duty to find the defendant guilty of larceny, and if they further believe from the evidence beyond a reasonable doubt that the property so taken, stolen and carried away was of the value of twenty-five dollars or more, you should return a verdict finding the defendant guilty of grand larceny, and, if they believe from the evidence beyond a reasonable doubt that the value of the property was less than twenty-five dollars, then you should return a verdict finding the defendant guilty of petty larceny. It will be noticed that no where in this instruction is the word "feloniously" used. Section 1030, Hemingway's Code of 1927; Section 1031, Hemingway's Code of 1927; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Hamilton v. State, 35 Miss. 214; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; Akroyd v. State, 107 Miss. 51, 64 So. 936. W.A. Shipman, Assistant Attorney-General, for the state. No judgment shall be reversed on the ground of misdirection to the jury unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice. Rule No. 11 of the Supreme Court. An examination of the entire record, we submit, will show that the misdirection by the court below to the jury in the matter of defining the offense of larceny does not result in a miscarriage of justice; that the evidence on behalf of the state shows the guilt of the appellant beyond a reasonable doubt of the offense of larceny; that the omission by the court below of one essential ingredient of the crime of larceny in the definition thereof contained in instruction number two for the state is purely technical, and that the guilt of the appellant of the crime which the instruction sought to define is manifestly shown by the testimony.

JUDGES

Cook, J., delivered the opinion of the court.

ACTS

No Acts

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POE v. STATE.

LARCENY.

Instruction on subject of larceny, omitting word "felonious" which is essential element of crime of larceny, held erroneous.

Cook, J., delivered the opinion of the court.

The appellant, Perry E. Poe, was indicted and tried on a charge of burglary and larceny, and was convicted of grand larceny, and sentenced to the state penitentiary for a term of three years, and from this conviction and sentence, he prosecuted this appeal.

The only ground upon which the appellant seeks a reversal is that the court erred in granting one of the state's instructions, and in disposing of this contention it will be of no value to here set forth the testimony of the numerous witnesses. It will be sufficient to state that, while the testimony is sharply conflicting, the evidence offered by the state is sufficient to support the verdict.

The appellant assigns as error the second instruction granted at the request of the state which authorized the jury to return a verdict of guilty of larceny if it believed from the evidence, beyond a reasonable doubt, that the defendant "did take, steal and carry away the personal property," etc., the particular criticism of this instruction being that it omits the word "felonious" which is an essential element of the crime of larceny.

This exact point was considered by the court in the case of Dedeaux v. State, 125 Miss. 326, 87 So. 664, and it was there held that the word "felonious," as used in the statute defining "larceny," is not merely descriptive of the grade of the offense, but it is an essential ingredient of the crime, and that an instruction which omits this essential element of the crime is erroneous. Other authorities supporting this view are cited in the Dedeaux Case, supra. Upon the evidence in the record now before as we are not able to say that the error in this instruction was not prejudicial, and therefore the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.

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