
    Dudley Brown v. State of Mississippi.
    1. Criminal Law and Procedure. Burglary.' Indictment. Ownership of house.
    
    An indictment for burglary may properly lay the ownership of the house broken and entered in a lessee in possession. James v. State, 77 Miss., 372, explained.
    2. Same. Improper remarles of prosecuting attorney. Test of reversible error. Supreme cou/rt practice.
    
    The test of reversible error in a criminal case because of improper statements by the prosecuting attorney in argument to the jury is whether the result reached would clearly and certainly have been the same, notwithstanding the error.
    From the circuit court of Pike county.
    Hon. Jepp Truly, Judge.
    Brown, the appellant, was indicted, tried, and convicted of burglary, and appealed to the supreme court. The indictment charges that appellant did break and enter, etc., the storehouse of Aaronson, etc. The proof showed that the ownership of the freehold of the property entered was in one Moyse, but that Aaronson had rented the house for a storehouse, and used and occupied it as such at the time the goods were stolen therefrom. The court refused the following instruction asked for defendant: “If the jury believe in this case beyond all reasonable doubt that the storehouse alleged to have been broken into was not the property of Aaronson, as alleged in said indictment, you must find the defendant not guilty.”
    The district attorney made the following remarks to the jury, to which the defendant’s counsel objected: “If you are going to do like' the juries did last week, turn everybody loose, regardless of evidence, why I might just as well close up shop. If you are going to believe tbe defendant, tbis entire court is a farce; he never denied bis guilt until be employed counsel.” Defendant’s motion for a new trial was overruled.
    
      Ratcliff & Wall, for appellant.
    Tbis cause should be reversed because tbe trial court refused tbe instruction asked for by defendant, based upon tbe fact that tbe indictment averred tbe ownership of tbe building alleged to have been burglarized to have been in Aaronson. Tbe proof shows said property to be that of Moyse. Tbis variance is fatal. James v. State, 11 Miss., 370.
    Tbis case should also be reversed and remanded because of tbe manifest unfairness and illegitimate argument of tbe district attorney in his final argument to the. jury, to which tbe yjroper and legal exception was taken at the proper time. Cheat-ham, v. State, 67 Miss., 335; Cartwright v. State,] 71 Miss., 82; Cavanah v. Siaie« 56 Miss., 299; Martin v. State, 63 Miss., 505; Pullman Co. v. Lawrence, 11 Miss., 782; Hemingway v. State, 68 Miss., 371; .Wood v. State, 61 Miss., 761; Lamar v. State, 65 Miss., 93.
    
      William Williams, assistant attorney-general, for appellee.
    Tbe burglarized store is shown by tbe whole testimony to bo that of Aaronson. Tbe goods taken therefrom were tbe property of Aaronson. He had charge of, control over, and was doing business in the store burglarized. To all intents and purposes tbe storehouse, at tbe time tbe burglary was committed, belonged to Aaronson. It matters not whether tbe fee simple title was in him or Moyse.
    Argued orally by Clem V. Ratcliff, for appellant, -and by William Williams, assistant attorney-general, for appellee.
   Whitetkld, J.;

delivered the opinion of the court.

The ownership - was properly laid in Aaronson. He had rented the house as a storehouse, occupied it, and used it as such, and the goods were stolen therefrom. In Webb v. State, 52 Ala., 423, the rule is thus correctly stated: “The authorities collected in the best text-books on criminal procedure justify us in declaring that, where there is a right to the use and occupation of the building in one who is actually occupying, distinct from the ownership of the freehold or the reversionary right- on the expiration of the term of the occupier, the ownership is properly laid in the occupier. 2 Bish. Cr. Proc., sec. 109; 1 Russ. Crimes, 806-820; 2 Whart. Cr. Law, 1577-1591.” Rex v. Rees, 7 Car. & P., 568; 32 E. C. L., 633, is a striking case. A gardener lived in a house of his master, quite separate from the dwelling house of his master, and the gardener had the entire control of the house. He lived in it, slept in it, and kept the key. Held, that on an indictment for burglary the gardener’s house might be laid either as his or 'his master’s. To the same effect are the following cases: Houston v. State, 38 Ga., 165; State v. Rand, 33 N. H., at p. 227; Markham v. State, 25 Ga., 52. Counsel misconceives James v. State, 77 Miss., 372; 26 So., 929; 78 Am. St. Rep., 527. What is said there must be taken, of course, in connection with the facts of the case. The only party in whom ownership of the railroad car could have been laid in that case was the Illinois Central Bailroad Company. The ownership w>as properly laid in the indictment in the Illinois Central Bailroad Company, but the difficulty in the case was there was no proof that -any such railroad company existed; in other words, the failure in that, case was to prove the ownership as laid. Here the question is whether the ownership was properly laid.

So far as the argument of the district attorney is concerned, it needs only to be said that it was improper, and in a doubtful case would cause a reversal. Here the guilt is overwhelmingly shown. The test is, as to reversible, error, on this, as on other grounds, would the result clearly and certainly have, been the same, notwithstanding the error ?

Affirmed.  