Breeland v. State

• Decision Date: 13 January 1902
• Citation: 31 So. 104,79 Miss. 527
• Court: Mississippi Supreme Court
• Parties: OLIVER BREELAND ET AL. v. STATE OF MISSISSIPPI

31 So. 104

79 Miss. 527

OLIVER BREELAND ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 13, 1902

FROM the circuit court of Pike county. HON. JEFFERSON TRULY Judge.

Breeland and others, appellants, were indicted, tried and convicted in the court below of whitecapping, violating the act entitled "An act to suppress whitecapping and like forms of intimidation," approved February 11, 1898 (Laws 1898, p 81), and appealed to the supreme court. The opinion of the court states the facts.

Reversed and remanded.

R. N. Miller, J. B. Sternberger and E. J. Simmons, for appellants.

The charge against appellants is purely statutory, and the felonies for which they were indicted were created by the act of 1898, ch. 70, p. 87. The rule is well established that an indictment for a purely statutory crime, where the words of the statute are broader than its purpose and the prohibited act does not clearly appear, or where under certain circumstances one can do lawfully the thing forbidden, it is necessary to depart from the letter of the statute and indict in words aptly charging the offense, as was held in Sullivan v. State, 67 Miss. 346. An indictment in the words of the statute is only sufficient if the statutory language is so specific as to give notice of the act made unlawful and is so exclusive as to prevent its application to other acts. Jesse v. State, 28 Miss. 100; Commonwealth v. Odlin, 23 Pick., 275; 1 Bishop's Criminal Procedure, sec. 623; State v. Bardwell, 72 Miss. 535; Hughes' Criminal Law and Procedure, sec. 270. The rule is too well established to need discussion. Whitecapping comes within the rule. To inform one of the accusation against him under the act of 1898, the indictment must charge that the threats were verbal or in writing, as the fact may be; it should charge what words were used to constitute the threats, because the meaning of the language is for the court to determine. Whether the threats were expressed or implied should have been averred. The indictment should have charged that the person attempted to be intimidated had a home which he could abandon, and that he had an employment which he could leave. If the injured party had neither home nor employment the appellants could not be guilty. To intimidate a tramp to "move on" is not a crime under the statute. To intimidate a person into abandoning an unlawful employment is not a crime. The indictment was fatally defective, and the demurrer to it should have been sustained. Besides, the indictment really charges two felonies in one count, and it should have been held insufficient because of duplicity.

Monroe McClurg, attorney-general, for appellee.

[The brief of the attorney-general is lost from the record.]

Argued orally by R. N. Miller, for appellants, and by Monroe McClurg, attorney-general, for appellee.

OPINION

TERRAL, J.

By a bill of indictment duly returned into the circuit court of Pike county, it was charged that Oliver Breeland, William Breeland, and Felder Crow, in said county, on the 26th day of August, A.D. 1901, did then and there unlawfully, willfully, and feloniously, by threats of injury to his person and that of his family, and by shooting into the dwelling house of Tobias Brumfield, then and there occupied by his family, attempt to intimidate the said Tobias Brumfield into an abandonment and change of his home and employment, contrary and against, etc. These parties were jointly tried for said crime, and, being convicted and sentenced to the penitentiary, they appeal their case to this court, and assign sundry errors in the action of the circuit court.

The indictment is based upon ch. 70, laws 1898, which provides "that any person or persons who shall, by placards or other writing, or verbally, attempt by threats, direct or implied, of injury to the person or property of another, to intimidate such other person into an abandonment or change of home or employment, shall, upon conviction, be fined not exceeding $ 500, or imprisoned in the county jail not exceeding six months, or in the penitentiary not exceeding five years." The statute above quoted makes it a felony for any person, by threats, verbal or in writing, direct or implied, to the person or property of another, to attempt to intimidate such other person into an abandonment or change of his home or employment; and if the indictment above set out charges with legal precision that Tobias...