Clue v. State

Calhoon, J., delivered the opinion of the court. The indictment charges that defendant £ ‘ unlawfully, wilfully, feloniously and maliciously did set fire to and burn a cotton house worth $100, the property then' and there of R. B. Carter, and three bales of cotton contained therein, which cotton was then and there the joint property of R. B. Carter and Babe Lee, and worth $120,” etc. Defendant did not demur, but [663] moved the court to require the state to £ £ elect on which count in the indictment it would proceed, which motion the court overruled. While charging two offenses in the same count is bad practice, still, as it appears on the face of the indictment, the objection should have been made by demurrer. Code 1892, § 1354. But aside from this, the charge is of one act at the same time, and we think the indictment valid. The house could not be burned without the cotton or the cotton without the house. It really charges the burning of the house and, as an incident, the cotton in it. Although differing from the case of Avant v. State, 71 Miss., 78, the reasoning of that case applies. It is plain that defendant could not have received any detriment, and did not, by any action of the court below. He was defended there and here with marked ability, and while on the evidence we would not have convicted him, we cannot say that the verdict was manifestly wrong, and so we are compelled reluctantly to sustain the conviction. Affirmed.