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Chaney v. State12/18/2001
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. Despite my conclusion as to burglary, Chaney's guilt as an aider and abettor of larceny is supported in the evidence. Larceny, though, is not a lesser-included offense of burglary. Smith v. State, 725 So. 2d 922, 927 (Miss. Ct. App. 1998). If it were and our reversal was as to an element that solely is in the greater, then we could affirm on the lesser charge since the jury found guilt of all the elements for the greater. Alford, 656 So. 2d at 1191. For burglary all that is required is that Chaney was a principal to the breaking and entering by someone with the intent to commit larceny. Actually committing the larceny requires taking and carrying property away; burglary does not. Smith, 725 So. 2d at 927. One way to understand why we could not reverse for burglary and affirm for larceny, is that the jury did not need to find that anyone had taken and carried property away to convict on burglary. The burglary instruction properly stated that conviction should occur if jurors found that Chaney participated in the breaking "with the intent to take[,] steal and carry away valuables. . . ." When the jury found Chaney guilty of burglary, they legally only found that someone entered with this intent. Even though the evidence is overwhelming that the larceny was completed, we could not in essence direct a verdict that Chaney committed the crime by handing down a judgment of conviction of larceny. Turner v. State, 573 So. 2d 1340, 1343 (Miss. 1990) (there can be no directed verdict of guilt).
. New proceedings on grand larceny would not violate Chaney's right to be free from double jeopardy. Having gained reversal on appeal, Chaney cannot claim double jeopardy from a second prosecution on grand larceny unless in the earlier trial he had been implicitly acquitted or unless the reason for the reversal is the insufficiency of the evidence on that charge. Charles H. Whitebread & Christopher Slobogin, Criminal Procedure 798-99, ยง 30.03 (1993), citing Price v. Georgia, 398 U.S. 323 (1970), and Burks v. United States, 437 U.S. 1 (1978). On the first point, since the jurors had been instructed to consider grand larceny only if they did not find that Chaney had committed a burglary, the verdict of guilt on burglary prevented any decision as to the grand larceny. As to the second point, I find evidentiary surfeit, not insufficiency, on the larceny charge.
. Chaney also admitted that he participated in a trespass. Trespass is a lesser-included offense of burglary. Alford v. State, 656 So. 2d at 1191. However, I would not enter judgment for that offense. The jurors were instructed that if they did not find guilt of all the elements of burglary, they were then to consider whether Chaney had participated in the commission of larceny. Since I find error in the verdict on burglary, we should remand for further proceedings regarding the larceny.
MCMILLIN, C.J., KING, P.J., THOMAS AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
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