Buchanan v. State, 14,687
| Court | Mississippi Supreme Court |
| Writing for the Court | MAYES, C. J. |
| Citation | 97 Miss. 839,53 So. 399 |
| Parties | OTHO BUCHANAN v. STATE OF MISSISSIPPI |
| Docket Number | 14,687 |
| Decision Date | 31 October 1910 |
53 So. 399
97 Miss. 839
OTHO BUCHANAN
v.
STATE OF MISSISSIPPI
No. 14,687
Supreme Court of Mississippi
October 31, 1910
FROM the Circuit court of Covington county, HON. ROBERT L. BULLARD, Judge.
Buchanan, appellant, was indicted and tried for and convicted of murder and appealed to the supreme court. The indictment, omitting formal parts, charged that defendant "did then and there wilfully, feloniously and of his aforethought kill and murder Red Hays, a human being."
Reversed.
E. L. Dent and G. H. Merrill, for appellant.
The motion made by the defendant after the state rested to exclude all the evidence offered by the state and for the discharge of appellant should have been sustained. The indictment does not charge murder for the reason that the word "malice" is left out which is always an essential element of the crime. Without malice and premeditation there is no murder, for there is no deliberate design to effect the death of the person killed or of any human being, except as defined by subdivisions (b) and (c), section 1227, Code 1906, and certainly the indictment does not charge either one of those. Except as defined by subdivisions (b) and (c), supra, to constitute murder, the act must be wicked and malicious to constitute the deliberate design, there must be a wicked or bad motive in the mind of the person charged. The manner in which or the means by which the death of the deceased was caused is not set out in the indictment and as this is not done we deem it necessary to charge in the indictment that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased. See Code 1906, § 1431. If appellant had wilfully, feloniously and of his aforethought killed the deceased as is charged in the indictment, it could only have been manslaughter because he could have done that without malice. Without malice being charged in the indictment none could be proved.
James R. McDowell, assistant attorney-general, for appellee.
For the first time, in, the supreme court, the defendant contends that the indictment is defective, and that in as much as the word "malice" is omitted, only a verdict for manslaughter could have been rendered, and, therefore, asks for a reversal.
The defendant has had two opportunities; First, under Code 1906, § 1426, he could have demurred to the indictment, when the court would have then required the district attorney to amend. Next, he had another opportunity on...
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Wexler v. State, 30024
...Louisiana v. Solomon Williams, 37 La. Ann. 776; Nichols v. State, 46 Miss. 284; Anthony v. State, 13 S. & M. 263; Buchanan v. State, 53 So. 399; State v. Stelly, 90 So. 390. [167 Miss. 467] The court erred in permitting the district attorney to put a bridle on the witnesses and lead the......
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Pruitt v. State, 29750
...20. This court has held that the accused cannot waive objections to a void indictment. Newcomb v. State, 37 Miss. 383; Buchanan v. State, 97 Miss. 839; State v. Coulter, 104 Miss. 764; Taylor v. State, 74 Miss. 544; Herron v. State, 118 Miss. 420. It was fatal error for the district attorne......
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Johnson v. State, No. 54917
...and criminal procedure rules, we find that it was not error to overrule the demurrer to this indictment. The case of Buchanan v. State, 97 Miss. 839, 53 So. 399 (1910), which held that a murder indictment which leaves out the word malice is "fatally defective", is therefore WAS IT......
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Mississippi Cent. R. Co. v. Dacus, 14,497
...of this court not difficult of application to the facts, and therefore such opinion would be without benefit to the bench and bar. After a [53 So. 399] most careful reconsideration of the case we find no ground for reversal, and out of deference to counsel's ability and evident confidence i......
-
Wexler v. State, 30024
...Louisiana v. Solomon Williams, 37 La. Ann. 776; Nichols v. State, 46 Miss. 284; Anthony v. State, 13 S. & M. 263; Buchanan v. State, 53 So. 399; State v. Stelly, 90 So. 390. [167 Miss. 467] The court erred in permitting the district attorney to put a bridle on the witnesses and lead the......
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Pruitt v. State, 29750
...20. This court has held that the accused cannot waive objections to a void indictment. Newcomb v. State, 37 Miss. 383; Buchanan v. State, 97 Miss. 839; State v. Coulter, 104 Miss. 764; Taylor v. State, 74 Miss. 544; Herron v. State, 118 Miss. 420. It was fatal error for the district attorne......
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Johnson v. State, No. 54917
...and criminal procedure rules, we find that it was not error to overrule the demurrer to this indictment. The case of Buchanan v. State, 97 Miss. 839, 53 So. 399 (1910), which held that a murder indictment which leaves out the word malice is "fatally defective", is therefore WAS IT......
-
Mississippi Cent. R. Co. v. Dacus, 14,497
...of this court not difficult of application to the facts, and therefore such opinion would be without benefit to the bench and bar. After a [53 So. 399] most careful reconsideration of the case we find no ground for reversal, and out of deference to counsel's ability and evident confidence i......