Cannon v. State

98 So. 63, 133 Miss. 567, 1923 Miss. LEXIS 167

• Court: Mississippi Supreme Court
• Decided: December 3, 1923
• Docket: No. 23634
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for burglary, one of the errors assigned being the overruling of a demurrer to the indictment. The indictment, Omitting the formal parts, is as follows: • ‘

“Did feloniously and burglariously break and enter the corn pen or house of one Forrest Willis, with the felonious •intent the goods and chattels of said Forrest Willis then and there kept to feloniously and burglariously take, steal, and carry away.”

The defect in the indictment that is challenged by the demurrer is that it fails to allege that the goods and chattels in the house alleged to have been burglarized were kept therein “for use, sale, deposit, or transportation.”

Section 1073, Code of 1906 (Hemingway’s Code, section 801), under which the indictment is dra.Avn, provides that: “Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building, ... in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein,” etc.

Under this statute, the breaking and entering of a house of the character therein described with intent to steal therein is burglary only where goods, merchandise, or other valuable things are kept therein “for use, sale, deposit or transportation.” Consequently, the purpose for which the goods, etc., are kept in the building is one of the elements of the offense created by the statute, and must be alleged in the indictment either in the words of the statute or their equivalent. Roberts v. State, 55 Miss. 421; 9 C. J. 1041.

The demurrer should have been sustained.

Reversed and remanded.