Mississippi Advisory Opinions February 26, 1987: AGO 000007797 (February 26, 1987)

AGO 000007797.

Dear Mr. Gray:

Attorney General Pittman has received your letter of request and has assigned it to me for reply. Your request states:

"I would like an opinion on the new election laws where burglary is not listed as a disqualifying crime to be able to register to vote. would this be considered the same as theft and therefore make it a disqualifying crime?"

Prior to the enactment of Chapter 495 of the 1986 Laws of Mississippi, burglary was a crime for which a person was disenfranchised. Please see Miss. Code Ann. 23-5-35 (1972) Miss. Constitution of 1890, 244-A, and a copy of an opinion dated February 24, 1986, addressed to the Hon. Jerry W. Wallace and attached hereto.

However, pursuant to Miss. Code Ann. 23-15-11 and 23-15- 19 (Supp. 1986; Special Pamphlet), burglary is no longer specifically enumerated by statute as a disqualifying crime.

These sections specifically refer to 241 of the Constitution for the list of disqualifying crimes. 241 reads as follows:

Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise qualified elector.

You will please note that the residency requirements of 241 have been declared null and void by the federal courts. Graham v. Waller, 343 F. Supp. 1 (1972). Also, 99-19-35 which is mentioned in our prior opinion but not amended by Chapter 495, has been repealed by implication to the extent necessary to comply with Chapter 495. Therefore, the crimes listed by 99-19- 35 shall now be read to conform to the list set forth by 241 of the Constitution.

You also ask if burglary could be considered the same as theft. Burglary is defined by Black's as:

The breaking and entering the house of another in the nighttime, with intent to commit a felony therein, whether the felony be actually committed or not.

Theft is defined by Black's as

The fraudulent taking of corporeal personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.

It is apparent from the above definitions that burglary is not synonymous with theft and therefore is not included within the term "theft" for purposes of 241.

Should you have any questions or if we may be of further assistance please do not hesitate to contact this office.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY

John H. Emfinger Special Assistant Attorney General

JHE :mfd Enclosure