Lusk v. State

• Citation: 2 So. 256,64 Miss. 845
• Court: United States State Supreme Court of Mississippi
• Decision Date: 24 May 1887
• Parties: JESSE LUSK v. THE STATE

2 So. 256

64 Miss. 845

JESSE LUSK v. THE STATE

Supreme Court of Mississippi

May 24, 1887

April 1887

APPEAL from the Circuit Court of Lincoln County HON. J. B. CHRISMAN Judge.

Jesse Lusk, Vaitchel Clark, and Monroe Carter were jointly indicted by the grand jury of Amite County for arson. Neither the record of the organization of the court nor the caption of the indictment showed where, in the County of Amite, the court was holden to which the indictment was returned. The defendants made a motion to quash the indictment on several grounds, the third of which was that "the indictment was not found and returned into court by a grand jury of Amite County." This motion was overruled.

On the trial of Lusk it was shown that he and Clark and Carter armed with a gun, a knife, and a pistol respectively, went to the dwelling- house of one Crum at night, cursed and abused Crum and his wife, threatened to kill Crum, drove him and his wife from their house, broke their dishes, and tore their bed clothing into pieces and scattered it over the house It was further shown that the only fire about the house consisted of a few coals in the fireplace, and that soon after Crum and his wife were driven from the house by defendant and his party the house was seen to be in flames and was completely consumed thereby. The indictment was based on such burning.

The court instructed the jury for the State as follows:

"The court instructs the jury that if two or more persons combine to do an unlawful thing, and the act of one of them or of all of them, proceeding according to the common plan, terminates in a criminal result, though not the particular result intended, all are liable. All who are responsible for what is done unlawfully are so for its entire consequences, whether contemplated or accidental. Therefore, if you believe from all the evidence, and circumstances in evidence in this case that these defendants combined to go to Crum's house to do an unlawful thing, and in the prosecution of said design and as a result and as a necessary consequence of the prosecution of such design Crum's house was burned, then defendants are guilty as charged, and the jury should so find as to the defendant now on trial, and that, too, whether the purpose to burn Crum's house was not entertained by all or by any of defendants at the outset."

The defendant was convicted and moved for a new trial, which was denied him. He then made a motion in arrest of judgment "because (1) there is no record in this court upon which judgment can be sustained; (2) there is no such record in this case as will support a sentence of imprisonment on defendant; (3) there is no record to show that defendant was ever indicted by a grand jury of Amite County." This motion was also overruled, and the defendant appealed to this court.

Judgment reversed.

T. R. Stockdale, for the appellant.

1. The instruction is wrong for two leading reasons: First, there is not a syllable of evidence to sustain it; second, it is not the law if there were such evidence.

There is not a word in all the evidence going to show, or tending to show, that the defendants combined to do an unlawful thing, nor that they combined to do anything. There is no evidence of any common plan--even to go to Crum's house.

This instruction was based on Peden v. The State, and nearly quotes its language in announcing a naked proposition of law, 61 Miss. 270, but the conclusion is in bald violation of the doctrine laid down in that case.

The accused are charged with willfully and maliciously burning Crum's house, but this instruction says that if they meant to do an unlawful thing--no matter what--no matter that the unlawful thing was without malice, not even willful, but simply careless--some prank--yet if the house was burned in pursuance of that prank, although accidental, they are guilty of' willfully and maliciously burning the house, and that, too, though none of them ever designed to burn it. I say this is square in the face of the Peden Case and common sense. The Peden Case, 61 Miss. 270, announces "whether or not Davis was guilty of murder depends on whether he struck the fatal blow with deliberate design to effect the death of Walker. If he did, he was guilty of murder." And it would follow that those who aided and abetted him were guilty of murder also. There is nothing novel in that. But this instruction announces the doctrine that a man may commit a felony without malice; that if he do a thing, however slightly unlawful, and as a result a house is burned, the ingredient of malice is infused into it by some legerdemain unknown to the law until now.

2. The motion to quash should have been sustained.

Had the record shown affirmatively that the court was held, or attempted to be held, at Glaster City, or in the woods, or in the town of Hog Eye, in said county, or at some beer saloon, there would be no argument admissible that there was a legal grand jury. The fact that the record fails to show where the court was held is equally fatal.

After a court is legally organized and is a court, the presumption arises that it acted properly, but to presume a court into existence would be a novelty beyond the power of § 1433 even.

If objection cannot be taken to the grand jury by the motion to quash, § 1433 does not apply, for the motions for new trial and in arrest are plain enough. And yet they are no plainer than the motion to quash. It simply directs the court to the record. "Unless the record shows that the errors complained of were made the ground of special exception in such court, " says § 1433.

It seems to me there is no escape from this motion unless, as suggested, the court overrule the cases holding the reverse and not require the record to show where the court was held, and thereby disembowel the reports from 4th Howard ...