James v. State

Whiteield, J.,

delivered the opinion of the court.

We have seldom had before us a more unintelligible record. *372 So far as Edward Clark is concerned, it is sufficient to say that the conviction is utterly unwarranted by the testimony.

As to Allen James, we notice the contentions of learned counsel for the appellant, as .follows: When the indictment charges burglary with larceny, the averment of ownership in the part charging the larceny is surplusage, and may be rejected. The precise point is decided in Brown v. State, 72 Miss., at page 990 ( 18 So. Rep., 432 ), and also in Harris v. The State, 61 Miss., at page 304. The principle is stated in Tyler v. State, 69 Miss., at page 397 ( 11 So. Rep., 25 ). “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.” 1 Bish. New Or. Proc., sec. 485. Of course, we are speaking of a case where, as here, the general verdict of guilty as charged is a conviction of the principal offense alone, as held in Roberts v. State, 55 Miss., at page 424. If the averment that the shoes were the property of tire Hamilton-Brown Shoe Company were stricken out, the burglary with intent to steal would be well charged. Browns case, supra. The cases of Mobley v. State, 46 Miss., 501 (attempt to commit a rape); John v. State, 24 Miss., 575 (murder); Dick v. State, 30 Miss., 631 (attempt to commit a rape) ; and Tyler v. State, 69 Miss., 395 ( 11 So. Rep., 25 ) (unlawful sale of intoxicants) are not in point. It is certainly settled that it is necessary to allege the ownership of the building burglarized, and to prove it as laid. 3 Enc. Pl. & Prac., p. 758, notes 3, 4; 2 Bish. New Or. Proc., sec. 137. And, when' a corporation is alleged to be the owner, there must be proof of the existence of the corporation. Id., sec. 138; Johnson v. State, 73 Ala., 486 ; Berry v. State, 92 Ga., 47 ( 17 S. E. Rep., 1006 ); and Norton v. State, 74 Ind., at page 338, are directly in point. Mr. Bishop says (2 New Or. Proc., p. 71) that “the de facto character of the corporation only need be shown in evidence;” *373 citing authorities. And it is said in Norton’s case, supra, that it is enough to prove that “the railroad company was known and acting as a corporation.” .But there is absolutely no testimony whatever in this record as to the existence of the corporation, the Illinois Central Railroad Company, not chartered in this state; and this failure of proof would be fatal if the error had been availed of specifically in the court below. Section 4370 of the code of 1392 required this to be done, and its not having been done forbids a reversal on that ground. Lea v. The State, 64 Miss., 201 ( 1 So. Rep., 51 ). See the authorities collected in Brame & A. (Miss.) Dig., pp. 1094-1097. The appellant must specify in the court below the error of which he complains. Had that been done in this case, the proof could have been instantly supplied. The verdict is supported by the evidence as to Allen James, and we find, as to him, no reversible error.

As to Edward Clark, the judgment is reversed, the verdict set aside, and the cause remanded for a new trial. As to Allen James, the judgment is affirmed.