Butler v. State

• Decision Date: 11 January 1904
• Citation: 35 So. 569,83 Miss. 437
• Court: Mississippi Supreme Court
• Parties: ADONIS M. BUTLER v. STATE OF MISSISSIPPI

35 So. 569

83 Miss. 437

ADONIS M. BUTLER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 11, 1904

October 1903

FROM the circuit court of Union county. HON. PERRIN H. LOWREY Judge.

Butler appellant, was convicted of an assault and appealed to the supreme court.

The evidence showed that a number of persons, including appellant, were engaged in digging a grave, and one of them McCulley, had been joking appellant a good deal, which angered him, and appellant picked up a shovel and started toward McCulley and threatened to strike him with it, but was caught and stopped. The instruction referred to in the opinion of the court is as follows: "The court instructs the jury for the state that an assault is an unlawful attempt or offer on the part of one person with force or violence to inflict a bodily hurt upon another. If there was a clear intent on the part of the defendant to commit violence on the person of Levy McCulley not in self-defense, either real or apparent, and that intent was accompanied by acts which, if not interrupted, would have been followed by personal injury, the violence is commenced, and the assault is complete, and the jury should so find."

Reversed and remanded.

Kimmons & Kimmons, W. V. Sullivan, L. R. Russell, and Stephens & Stephens, for appellant.

The instruction for the state should not have been given. It is true that it announces an abstract principle of law on the subject of what constitutes an assault, but it is erroneous in this, it instructs the jury to find the defendant guilty as charged if it is clear that there was an intent on the part of defendant to commit violence on the person of the party alleged to have been assaulted, without even an intimation as to how the jury should reach such conclusion; whether from the evidence, their own personal knowledge of the facts in the case or otherwise. Indeed, they are not even told that the facts on which they were to base their finding should be clear to their minds.

J. N. Flowrs, assistant attorney general, for appellee.

But one point is presented to the court by this appeal, and that is as to the action of the court below in giving the instruction asked by the state. We think the lower court did not commit error.

OPINION

TRULY, J.

The instruction granted for the state informs the jury that "if there was a clear intent on the part of the defendant to commit violence on the person of...