McDowell v. State

68 Miss. 348

• Court: Mississippi Supreme Court
• Decided: October 15, 1890
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The judgment in this cause must be reversed because of the variance between the averment in the indictment and the evidence in relation to the ownership of the property stolen. There is conflict between the state’s witnesses as to whether the cotton stolen belonged to Weathersby (in whom, the property is laid in the indictment) or to Weathersby and one Lowe, as joint owners.

The 3d and 4th instructions for the state informed the jury that it might convict if the evidence showed that the defendant stole the cotton and that Weathersby owned or had an undivided interest therein. This was error. In larceny, ownership must be proved as laid, and where two or more persons own the property stolen, the allegation in the indictment must be according to the fact. Wharton’s American Cr. Law, § 1833 ; Com. v. Trimmer, 1 Mass. 476; State v. McCoy, 14 N. H. 364; 12 Am. & Eng. Ency. of Law, 863, citing 35 Texas, 691; 74 N. C. 272; 3 S. C. 16; 4 McCord (S. C.), 16. Judgment reversed.