Lewis v. State , 85 Miss. 35 ( 1904 )

Calhoon, J.,

delivered the opinion of the court.

Oode 1892, § 1502, defines “crime” to mean, “when used in any statute, any violation of law liable to punishment by criminal prosecution.” Section 1746 authorizes the examination of any witness as to “his conviction of any crime,” and Helm v. State, 67 Miss., 562 (s.o., 7 South., 487), properly holds that the inquiry applies as well to misdemeanors as to infamous crimes.

It was not reversible error to sustain the state’s challenge of the juror Jackson for the cause that there was a criminal case pending against him in that court. If the court had set him aside of its own motion, the action could not have been assigned for error. Code 1892, § 2355. The court is under a duty to see that there is a fair and impartial jury. There is no pretense here that the trial was not by such a jury; neither side exhausted its peremptory challenges, and neither side has any vested right in particular jurors.

Thé ownership of the property as charged in the indictment and shown in the evidence is sufficient. The charge is that the place was “a certain baker shop, the’property of one William Grimes,” 'and ’the proof is that William Grimes had used and occupied it as a baker’s shop for eighteen months. ’ This is enough, though the fee simple of the house was in another person. Possession is enough as against burglars. Wharton, Or.' Law (10th ed.), sec. 804. And this is true even if the possession be a wrongful possession. 1 McClain, Or. Law, sec. 508.

We think Jaines Patterson, who was jointly indicted with appellants, was a competent witness in this state, especially after nol. pros, as to him. He alone could object to being examined. State v. Michel (La.), 35 South., 629.

It'is not just ground of error that the jury was retired pendr ing argument to the court on the competency of a witness.

Affirmed.