McGaha v. State , 173 Miss. 829 ( 1935 )

The appellant, Oscar McGaha, was convicted of petit larceny and sentenced to serve sixty days in jail upon an affidavit as follows: "Oscar J. McGaha did, on or about the third day of July, 1932, in said district, county and state, wilfully and unlawfully and feloniously steal and carry away one jersey color cow, weight about #500, known as the Louis Suitor cow calf — val. cow at $25.00. Against the peace and dignity," etc.

There was no demurrer to the affidavit and no motion in arrest of judgment, but an appeal has been taken, and it is contended that the affidavit is fatally defective, in that it fails to charge that the property stolen belonged to anyone, and no attempt is made to allege ownership of the property stolen.

In Hughes v. State, 74 Miss. 368, 20 So. 838, it was held that the failure to show ownership of the property stolen is a defect of substance and not form, and may be taken advantage of by motion in arrest of judgment as well as by demurrer before trial.

In Reed v. State, 171 Miss. 65, 156 So. 650, it was held that a fatal defect in an indictment or affidavit may be availed of on appeal for the first time.

It is necessary for an indictment or affidavit to allege ownership of the property stolen, that being the essence of the offense, and a conviction upon such an affidavit is void, and the defect may be availed of here for the first time.

The judgment of conviction will therefore be reversed, and the appellant will be held upon his appearance bond to await the action of the next grand jury of the county.

Reversed and remanded.