Coleman v. State
| Decision Date | 18 January 1909 |
| Docket Number | 13,519 |
| Citation | 48 So. 181,94 Miss. 860 |
| Court | Mississippi Supreme Court |
| Parties | ARMISTEAD COLEMAN v. STATE OF MISSISSIPPI |
FROM the circuit court of Covington county, HON. ROBERT L BULLARD, Judge.
Coleman appellant, was indicted, tried and convicted of having unlawfuly and intentionally pointed and aimed a pistol at and towards one Macqueen, not in necessary self-defense or in the lawful discharge of official duties, etc., and appealed to the supreme court. The indictment charged that Coleman "pointed and aimed" the pistol. On the trial the court below instructed the jury for the state to convict if they believed from the evidence beyond every reasonable doubt, etc., that defendant "pointed or aimed" the pistol, etc.
Code 1906, § 1045, of which the indictment was predicated is in these words:
1045. (969) THE SAME. Pointing, aiming a gun, etc.--Any person who shall intentionally point or aim any gun, pistol, or fire-arm at or towards another, except in self-defense or in the lawful discharge of official duty, shall be punished by a fine of not more than five hundred dollars, or imprisonment in the county jail not longer than six months, or both; and any person who shall discharge such fire-arms, so intentionally pointed or aimed, shall be punished by not exceeding double such fine or imprisonment or both; and any person who, by such discharge, shall maim, kill, or injure another shall be punished by imprisonment in the penitentiary not exceeding five years.
Affirmed.
Shannon & Street, for appellant.
It will be noted that the indictment charges two offenses--one for pointing the pistol and the other for aiming it. The statute on which the indictment is founded, Code 1906, § 1045 provides that any one who shall intentionally point "or" aim--(not point "and" aim) shall be guilty, etc. So that when the grand jury saw fit to charge defendant with both offenses, to-wit, pointing "and" aiming, it put the burden upon the state of proving both offenses.
There is not a particle of testimony in the record that defendant aimed the pistol at or towards Macqueen. Indeed, it requires a strained construction of the testimony to say that it is sufficient to warrant a conviction on the charge of pointing the pistol at or toward him. About the most favorable testimony for the state on this point is that the pistol was pointed in the direction of Macqueen.
The case of Rist v. State, 93 Miss. 841, 47 So. 433, is authority for upholding our contention. There Rist was indicted for arson. And the court, through WHITFIELD, J says: "The indictment expressly charged that the defendant, "in the nighttime, set fire to and burned," thus charging expressly that both the setting of fire to the house and the burning of the house were in the nighttime, and consequently making it essential to prove both facts as charged."
The only instruction the state asked for or was given authorized the jury to convict if it believed the defendant pointed "or" aimed. It is elementary that this was fatal error, when the state caused the indictment to be returned charging pointing "and" aiming, it assumed the burden of proving...
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...indictment, and, where that is done, the proof of one offense will sustain the indictment, under the doctrine announced in Coleman v. State, 94 Miss. 860, 48 So. 181, and State v. Clark, 97 Miss. 806, 52 691, wherein it is held that, where a statute makes it a crime to do one thing or anoth......
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