Draughn v. State

76 Miss. 574

• Court: Mississippi Supreme Court
• Decided: November 15, 1898
• Status: Published

Opinion

Terral, J.,

delivered the opinion of the court.

The indictment alleged “that William Draughn on the — day of June, 1895, did feloniously, burglariously break and enter the> dwelling house of Sam West with intent to commit the crime of larceny therein,” etc. In the course of the trial it clearly appeared from the evidence of the prosecutor, Sam West, that the house broken into was not a dwelling house, but was a crib, and the only evidence of its use was the testimony of West, who said that he lost some bacon out of it. The variance between the allegation of the breaking into a dwelling house and the evidence relating thereto constitutes the first objection of the defendant to his conviction. The evidence arising from the confession of Draughn, obtained by a promise not to prosecute him, was also objected to. In the third place the defendant complains that before West testified as to the confessions of Draughn, he requested the court to ascertain, apart from the jury, whether the forthcoming confession was free and voluntary or not, which the court declined to do, and this action is also complained of. These several objections we think are well taken. '

1. That the court before admitting the1 confessions to the jury should have examined and known that it was free and voluntary is held in Ellis v. State, 65 Miss., 47.

2. That the flattery of hope held out to the defendant, by the promise of West not to prosecute him, vitiated the confession as evidence is announced in 1 Greenl. on Evi., sec. 119.

3. That the breaking' of a crib or of a smokehouse will not support the allegation of the breaking of a dwelling house is affirmed by Wharton Am. Grim. Law (6 Ed.), sec. 1611.

The indictment is bad in not alleging that Draughn broke and entered the house of West with intent the goods and chattels of West then in said house feloniously and burglariously to take and. carry away. Whar. Prec. Indict. (2 Ed.), sec. 367, ,248.

The judgment is reversed, verdict is set aside, the indictment s quashed, and the defendant is held to answer such bill as may be found against him.

Reversed and remanded.