Brown v. State , 81 Miss. 143 ( 1902 )

Whitetkld, J.;

delivered the opinion of the court.

The ownership - was properly laid in Aaronson. He had rented the house as a storehouse, occupied it, and used it as such, and the goods were stolen therefrom. In Webb v. State, 52 Ala., 423, the rule is thus correctly stated: “The authorities collected in the best text-books on criminal procedure justify us in declaring that, where there is a right to the use and occupation of the building in one who is actually occupying, distinct from the ownership of the freehold or the reversionary right- on the expiration of the term of the occupier, the ownership is properly laid in the occupier. 2 Bish. Cr. Proc., sec. 109; 1 Russ. Crimes, 806-820; 2 Whart. Cr. Law, 1577-1591.” Rex v. Rees, 7 Car. & P., 568; 32 E. C. L., 633, is a striking case. A gardener lived in a house of his master, quite separate from the dwelling house of his master, and the gardener had the entire control of the house. He lived in it, slept in it, and kept the key. Held, that on an indictment for burglary the gardener’s house might be laid either as his or 'his master’s. To the same effect are the following cases: Houston v. State, 38 Ga., 165; State v. Rand, 33 N. H., at p. 227; Markham v. State, 25 Ga., 52. Counsel misconceives James v. State, 77 Miss., 372; 26 So., 929; 78 Am. St. Rep., 527. What is said there must be taken, of course, in connection with the facts of the case. The only party in whom ownership of the railroad car could have been laid in that case was the Illinois Central Bailroad Company. The ownership w>as properly laid in the indictment in the Illinois Central Bailroad Company, but the difficulty in the case was there was no proof that -any such railroad company existed; in other words, the failure in that, case was to prove the ownership as laid. Here the question is whether the ownership was properly laid.

So far as the argument of the district attorney is concerned, it needs only to be said that it was improper, and in a doubtful case would cause a reversal. Here the guilt is overwhelmingly shown. The test is, as to reversible, error, on this, as on other grounds, would the result clearly and certainly have, been the same, notwithstanding the error ?

Affirmed.