Owens v. State

232 So. 2d 361, 1970 Miss. LEXIS 1622

• Court: Mississippi Supreme Court
• Decided: February 23, 1970
• Docket: Misc. No. 119
• Status: Published

Opinion

QN PETITION FOR WRIT OF HABEAS CORPUS

PATTERSON, Justice:

Petitioner, an inmate of the state penitentiary, has filed with this Court a petition entitled “Writ of Habeas Corpus”- which we will consider as a motion so correct the sentence imposed upon him. He alleges by such motion that he was tried and convicted on March 16, 1966, by the Circuit Court of Forrest County under an indictment charging both burglary and grand larceny in a single count. He further alleges that after being tried before the jury on this charge he was sentenced to serve a term of four years for burglary and three years for grand larceny with the two sentences to run consecutively.

The record substantiates the allegations of the petition. The sentence is error. See Bullock v. State, 222 So.2d 692 (Miss.1969), Evans v. State, 204 So.2d 570 (Miss.1967), and Bradshaw v. State, 192 So.2d 387 (Miss.1966), in each of which we held that the larceny charge in the indictment was charged not as a substantive offense, but as demonstrative of burglarious intent, and therefore, the charge of grand larceny was not subject to separate sentence. In each of these cases that part of the sentence related to larceny was deleted as surplusage. We are of the opinion that the three-year sentence imposed for grand larceny is surplusage and as such is deleted from the sentence and the petitioner stands convicted of burglary only. The sentence imposed for the crime of burglary is not affected by this decision and is to be considered in conformity with the usual procedure with regard to its termination.

The motion for correction of sentence is sustained and the three-year sentence erroneously imposed on the charge of grand larceny is hereby deleted.

All Justices concur.