Brown v. State

1. Criminal Law and Procedure. Burglary.' Indictment. Ownership of house. An indictment for burglary may properly lay the ownership of the house broken and entered in a lessee in possession. James v. State, 77 Miss., 372, explained. 2. Same. Improper remarles of prosecuting attorney. Test of reversible error. Supreme cou/rt practice. The test of reversible error in a criminal case because of improper statements by the prosecuting attorney in argument to the jury is whether the result reached would clearly and certainly have been the same, notwithstanding the error.

From the circuit court of Pike county. Hon. Jepp Truly, Judge. Brown, the appellant, was indicted, tried, and convicted of burglary, and appealed to the supreme court. The indictment charges that appellant did break and enter, etc., the storehouse of Aaronson, etc. The proof showed that the ownership of the freehold of the property entered was in one Moyse, but that Aaronson had rented the house for a storehouse, and used and occupied it as such at the time the goods were stolen therefrom. The court refused the following instruction asked for defendant: “If the jury believe in this case beyond all reasonable doubt that the storehouse alleged to have been broken into was not the property of Aaronson, as alleged in said indictment, you must find the defendant not guilty.” The district attorney made the following remarks to the jury, to which the defendant’s counsel objected: “If you are going to do like' the juries did last week, turn everybody loose, regardless of evidence, why I might just as well close up shop. If you are going to believe tbe defendant, tbis entire court is a farce; he never denied bis guilt until be employed counsel.” Defendant’s motion for a new trial was overruled. Tbis cause should be reversed because tbe trial court refused tbe instruction asked for by defendant, based upon tbe fact that tbe indictment averred tbe ownership of tbe building alleged to have been burglarized to have been in Aaronson. Tbe proof shows said property to be that of Moyse. Tbis variance is fatal. James v. State, 11 Miss., 370. Tbis case should also be reversed and remanded because of tbe manifest unfairness and illegitimate argument of tbe district attorney in his final argument to the. jury, to which tbe yjroper and legal exception was taken at the proper time. Cheat-ham, v. State, 67 Miss., 335; Cartwright v. State,] 71 Miss., 82; Cavanah v. Siaie« 56 Miss., 299; Martin v. State, 63 Miss., 505; Pullman Co. v. Lawrence, 11 Miss., 782; Hemingway v. State, 68 Miss., 371; .Wood v. State, 61 Miss., 761; Lamar v. State, 65 Miss., 93. Tbe burglarized store is shown by tbe whole testimony to bo that of Aaronson. Tbe goods taken therefrom were tbe property of Aaronson. He had charge of, control over, and was doing business in the store burglarized. To all intents and purposes tbe storehouse, at tbe time tbe burglary was committed, belonged to Aaronson. It matters not whether tbe fee simple title was in him or Moyse.