Chester v. State
| Decision Date | 02 March 1953 |
| Docket Number | No. 38558,38558 |
| Citation | 216 Miss. 748,63 So.2d 99 |
| Parties | CHESTER v. STATE. |
| Court | Mississippi Supreme Court |
James A. Wiltshire, Magnolia, for appellant.
J. P. Coleman, Atty. Gen., George H. Ethridge, Asst. Atty. Gen., for appellee.
The appellant, Henry Chester, was indicted and tried for assault and battery with intent to kill and murder Ernestine Williams. He was convicted, and sentenced to a term of eight years and eight days in the State penitentiary, from which judgment he appeals.
The evidence on the part of the state shows that the appellant, without cause or provocation, on March 1, 1952, assaulted Ernestine Williams and her daughter by cutting and stabbing them with a knife. According to the testimony of Dr. Brock, who treated the prosecuting witness, she was stabbed and cut in at least eighteen or twenty places, all around--principally around on the side of her back and left side on her hip and leg and right arm, and she had a cut across the stomach eight or ten inches long. The constable and deputy sheriff who arrested the appellant later that night testified that the appellant admitted the cutting and gave them the knife he used, which knife was introduced in evidence. According to the testimony, the blade of this knife was three or three and a quarter inches long. The deputy sheriff testified that there were no bruises, cuts, marks, or signs on appellant. The appellant did not testify in his own behalf. Other witnesses, however, testified that he acted in self defense.
The indictment, omitting the formal parts, reads as follows: '* * * on or about 1st day of March, A.D., 1952 did, then and there, wilfully, unlawfully, feloniously and of his malice aforethought assault, cut, stab, and wound Earnestine Williams, a human being, with a certain deadly weapon to-wit: a knife, with the felonious intent her the said Earnestine Williams, wilfully, unlawfully, feloniously and of his malice aforethought to kill and murder.'
To this indictment, the appellant filed a plea in abatement, asking that the indictment be quashed and that defendant not be required to make further answer thereto. He also filed a demurrer. The plea in abatement sets out that an affidavit charging the appellant with a simple assault was filed by the constable in the justice of the peace court on March 3, 1952; that on March 10, the appellant employed counsel and was released on bond and the case set for trial in the justice of the peace court on March 14; that due to an oversight on the part of the justice of the peace, the state's witnesses were not present and there was no trial. Defense counsel got in touch with the county attorney and tried to arrange another date for a trial. The county attorney advised counsel for appellant that his investigation indicated that the crime was a felony and that the matter would be presented to the grand jury the following Monday, March 17. The indictment was returned on March 19 and the appellant was tried and convicted on March 25, 1952.
The appellant's argument appears to be that an indictment could not be returned until the appellant was tried in the justice of the peace court on an affidavit charging him with a simple assault. There is no merit in this contention, for regardless of the outcome of the trial for a misdemeanor, it would be no bar to a subsequent indictment for felony in the same matter. Sec. 2572, Miss.Code 1942. The court committed no error in overruling the plea in abatement. The demurrer to the indictment was properly overruled. State v. Sims, 80 Miss. 381, 31 So. 907; Spradley v. State, 80 Miss. 82, 31 So. 534.
The appellant next argues that the court erred in granting the state the following instruction: 'The Court instructs the jury for the State that if you believe from all the evidence in this case beyond a reasonable doubt that the defendant Henry Chester, did, on the 1st day of March, 1952, wilfully, unlawfully, feloniously and of his malice aforethought assault, cut, stab, and wound Earnestine Williams, a human being, with a certain deadly weapon to-wit: a knife, with the felonious intent her the said Earnestine Williams, wilfully, unlawfully, feloniously, and of his malice aforethought to kill and murder, not in necessary self-defense, and at a time when he the said Henry Chester was in no real or apparent danger of losing his own life or suffering great bodily harm at the hands of the said Earnestine Williams, then the defendant Henry Chester is guilty as charged and the jury should so find.'
Counsel contends that this instruction is...
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