BEFORE WALKER, DAN LEE AND ROBERTSON
DAN LEE, JUSTICE, FOR THE COURT:
A jury in the Circuit Court of Hinds County found Clarence Course guilty of the burglary of a dwelling, a violation of Miss. Code Ann. 97-17-31 (1972). Course was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. From his conviction and sentence he brings this appeal and assigns as error:
1. There was a fatal variance between the indictment and the proof, as there was no evidence ever introduced before the jury from which it could find the building which the Defendant-Appellant allegedly burglarized to be a" dwelling house ".
2. The state failed to prove by the evidence introduced at court the essential elements of the crime of burglary of an inhabited dwelling as indicted.
3. The Court erred in granting State's
Instruction 1 and 2 in view of the fact that the case at bar was a circumstantial evidence case.
Course first argues that there was a fatal variance between the indictment and the proof. Course submits that the house which he is accused of burglarizing was not a dwelling. Testimony presented at trial clearly shows that under this Court's interpretations of 97-17-31 the house was a dwelling.
The house belonged to Mrs. Leah Eubanks. Frances Jamison, Mrs. Eubanks' close personal friend and attorney, testified that on the day of the burglary, October 1, 1982, Mrs. Eubanks was in a nursing home. She had entered the nursing home in August of 1982. On December 11, 1982, Mrs. Eubanks would be 90 years old and, according to Mrs. Jamison, she was" getting senile "and unable to care for herself.
Prior to being admitted to the nursing home, Mrs. Eubanks lived in the house and intended to return when her health permitted. According to Mrs. Jamison, Mrs. Eubanks has gone back to her house several times. She goes there to visit for an hour or two at a time and gets her mail there. According to Mrs. Jamison, the last time she took Mrs. Eubanks back to her home was in August. Mrs. Jamison did not know if Mrs. Eubanks had been back to her home between August and October, 1982. Mrs. Eubanks still received her mail at that home and Mrs. Jamison had picked it up the day before the burglary. The last time anyone spent the night in Mrs. Eubanks' home was in July, 1982.
The leading case defining dwelling under the burglary statute is Robinson v. State, 364 So.2d 1131 (Miss. 1978). In Robinson the issue was whether a motel room was a dwelling house of its temporary occupants. This Court decided it was not.
Code section 97-17-31, styled" Burglary-dwelling house defined, "reads as follows: Every building joined to, immediately connected with, or being part of the dwelling house, shall be deemed the dwelling house.
We therefore see that the Legislature in this section, passed in 1848, did not see fit to extend the term" dwelling house "beyond the normal ...