Ashley v. State

• Decision Date: 08 May 1933
• Docket Number: 30549
• Citation: 147 So. 879,166 Miss. 11
• Court: Mississippi Supreme Court
• Parties: ASHLEY v. STATE

147 So. 879

166 Miss. 11

ASHLEY v. STATE

No. 30549

Supreme Court of Mississippi

May 8, 1933

Division B

HOMICIDE.

Instruction to find defendant guilty of assault with intent to kill if he aided and abetted another in striking victim held not reversible error under evidence.

HON. E M. LANE, Judge.

APPEAL from circuit court of Smith county HON. E. M. LANE, Judge.

Rob Ashley was convicted of assault and battery with intent to kill, and he appeals. Affirmed.

Affirmed.

O. O Weathersby, of Taylorsville, for appellant.

There is not one scintilla of evidence in this record to show that the appellant was doing or attempting to do the witness Norris any injury at the time that said Norris was struck by Ernest Ashley.

The instruction granted the State tells the jury that if they believe beyond a reasonable doubt that the defendant, Rob Ashley was present with a deadly weapon, to-wit, a hammer, aiding and abetting the said difficulty at the time Ernest Ashley struck and inflicted the wound on witness Norris and under these circumstances the said Ernest Ashley struck and wounded witness Norris, then it was the sworn duty of the jury to find him guilty as charged. The instruction granted the State as above referred to is manifestly error. There is not one iota of evidence in the record that Rob Ashley aided or abetted in the striking and wounding of the witness Norris by the said. Ernest Ashley. The said instruction is misleading to the jury and is not based on the facts in this case.

Herbert Nunnery, Assistant Attorney-General, for the state.

In order for one to aid and abet the commission of a crime, he must do something that will incite, encourage or assist the actual perpetrator in the commission of the crime.

Crawford v. State, 133 Miss. 147, 97 So. 534.

Certainly, by the appellant standing over the prosecuting witness, Norris, with his hammer drawn in such a position or a threatening manner as he was doing, it encouraged his son, Ernest Ashley, to step in and commit the crime.

One who aids, assists and encourages a murder is a principal and not an accessory, and his guilt in no wise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime.

Dean v. State, 85 Miss. 40.

OPINION

Ethridge, P. J.

The appellant, Rob Ashley, was indicted and convicted of assault and battery with intent to kill and murder one S. B. Norris, and was sentenced to one year in the penitentiary.

It appears that Rob Ashley and his son, Ernest Ashley, were share croppers on the land of S. B. Norris in Smith county, and that they had procured from the government aid in making the crop, and the government was taking a certain part of the cotton when it was sold and permitting a part thereof to be paid to the owner. The appellant and his son had carried four bales of cotton to the gin and had not paid Norris his portion of the proceeds due for rent and supplies. On the occasion of the assault, Norris had gone to the gin to check up the cotton ginned and the amount paid to Rob Ashley, and while there, Rob Ashley and his son, Ernest, came to the gin with the fifth bale of cotton.

The prosecuting witness, S. B. Norris, narrates the occurrences at the time as follows: "I took down on a piece of paper the numbers of the bales and the amount paid. I took it down on a piece of paper and by the time I had done that Mr Ashley had gotten there with his fifth bale. I told Mr. Butler not to pay him any more until I got my part. I says, 'Mr. Butler, all I want is my part.' And I says to Mr. Ashley, 'Rob, I want to explain this to you,' and I went ahead to explain it to him. Then Rob jerked a claw hammer out of his pocket and drew...