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85 Miss. 35

Lewis v. State

Mississippi Supreme Court

Decided November 15, 1904

Mississippi Supreme Court · decided 1904-11-15

From the circuit court of Harrison county. Hon. William T. McDonald, Judge. Robert Lewis and Robert Allen, the appellants, were indicted jointly with one Patterson for burglary. A nolle prosequi was entered as to Patterson. Appellants were tried, convicted, and appealed to the supreme court. On the trial a juror of the original panel was challenged for cause by the state, on the ground that he had a case pending 'against him in the court.

Key passage — most relied on by later courts

“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.”

quoted by 1 later decision, including Carroll v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1904-11-15

How this case has been cited

Cited by 9 later decisions — most recently October 1977

1 federal appellate · 8 state decisions

3019041910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Calhoon, J.,

¶1delivered the opinion of the court.

¶2Oode 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.

¶3It 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.

¶4*40Thé 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.

¶5We 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.

¶6It'is not just ground of error that the jury was retired pendr ing argument to the court on the competency of a witness.

¶7Affirmed.

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