
    Tate v. State.
    (Division A.
    Oct. 5, 1942.)
    [9 So. (2d) 788.
    No. 35041.]
    
      Hemy M. Chymes, of Memphis, Tenn., for appellant.
    
      G-reek L. Rice, Attorney-General, by R. 0. Arrington, Assistant Attorney-General, for appellee.
   Roberds, J.,

delivered the opinion of the court.

The indictment charges appellant with the burglarious breaking and entering of the dwelling house of Mrs. R. M. Lusher with the intent “then and there unlawfully, wilfully, feloniously, and burglariously to take, steal and carry away . . . the goods, wares and chattels of the said Mrs. R. M. Lusher.” He was convicted of the crime charged and sentenced to seven years in the state penitentiary.

The breaking and entering were shown, but the burden was also upon the state to prove beyond a reasonable doubt that the defendant did it and that he had the felonious intent at the time to commit larceny therein. State v. Buchanan, 75 Miss. 349, 22 So. 875. The evidence fails to meet that burden in either respect and defendant should have been acquitted and discharged. That order will be entered here.

Reversed and defendant discharged.  