Faulkner v. State
| Decision Date | 30 April 1934 |
| Docket Number | 31162 |
| Citation | 154 So. 338,170 Miss. 195 |
| Court | Mississippi Supreme Court |
| Parties | FAULKNER v. STATE |
1 HOMICIDE.
In prosecution for assault and battery with intent to kill specific intent to kill particular person named in indictment must be proved as alleged.
2 HOMICIDE. Evidence held insufficient to sustain conviction for assault and battery with intent to kill and murder.
Evidence was insufficient to support inference that defendant had any specific intent to shoot named person, or to shoot such person mistaking him for another, or that defendant shot into a group or in a specified direction with specific intent to kill any and all persons within range.
HON. WM. A. ALCORN, JR., Judge.
APPEAL from circuit court of Bolivar county HON. WM. A. ALCORN, JR., Judge.
Sam Faulkner was convicted of an assault and battery with intent to kill and murder, and he appeals. Reversed and remanded.
Reversed and remanded.
Carmon E. Valentine, of Cleveland for appellant.
The proof of the witnesses offered by the state positively and conclusively negative any charge of intent to kill.
The indictment must specifically charge intent to kill a particular person.
Jones v. State, 11 S. & M. 315.
In Barcus v. State, 49 Miss. 17, the indictment must not only charge but the proof must show that the person hit was the intended victim of the shot, with malice aforethought to kill and murder by accused. Where defendant shot at one person (as Walker in this case, if he had shot at him), and missed him and hit another (as Carpenter in this case), the indictment cannot be maintained if it charge an intent to kill the latter.
Morgan v. State, 13 S. & M. 242.
The charge being specific, the proof must likewise be specific.
Rendition of the judgment was erroneous because there was neither law nor evidence to support the verdict and judgment.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
Evidence of the details of a previous difficulty between a party to a homicide and a third party is not competent.
Thompson v. State, 84 Miss. 758, 36 So. 389; Brown v. State, 88 Miss. 166, 40 So. 737; Herman v. State, 75 Miss. 340, 22 So. 873; Rainer v. State, 81 Miss. 489, 33 So. 19; Hale v. State, 72 Miss. 140, 16 So. 387; Foster v. State, 70 Miss. 755, 72 So. 822; Mabry v. State, 71 Miss. 716, 14 So. 267; Carter v. State, 145 So. 739; Reece v. State, 154 Miss. 862, 123 So. 892; Mooreman v. State, 131 Miss. 662, 95 So. 638; Tucker v. State, 103 Miss. 117, 60 So. 65; Temple v. State, 145 So. 749.
Intent, of necessity, must be inferred from what actually happened and, if the jury believed that the defendant deliberately shot at Mr. Carpenter and wounded him, it was for them to say, from the circumstances, whether or not the defendant, by his deliberate act, intended to kill and murder the assaulted person. I submit that it was a jury question, out and out, and that it was proper for the trial court to overrule the request for a peremptory instruction and let the case go to the jury.
Appellant was convicted under an indictment which charged him with assault and battery with intent to kill and murder J. C. Carpenter; and he appeals, assigning as one of his grounds therefor that the proof, admitting all that the state's evidence substantially shows, is that appellant did not make the assault and battery with the specified intent to kill and murder J. C. Carpenter, but that the intent was either to shoot a third person, or that he shot to frighten away the third person mentioned who, as he claims, was about to make an assault on him, or that in doing so he negligently or recklessly shot into a street crowded with numerous persons within range.
In Morgan v. State, 13 S. & M. 242, and in other cases cited in Ross v. State, 158 Miss. 827, 831, 131 So 367, it was held that, in a prosecution under the statute for assault and battery with intent to kill and murder, and under an indictment charging intent to kill a particular person, the proof must show the specific intent to kill the particular person named in the indictment, and that proof of intention to kill a third person or that accused shot into a crowd with intent to kill some person or persons therein, but not with the specific intent to kill the particular person named, is not sufficient. The specific intent must be proved as alleged. In McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209, it was held that, if the evidence showed beyond a reasonable doubt that the accused intended to kill the...
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