Flowers v. State
| Decision Date | 29 January 1912 |
| Docket Number | 15,528 |
| Citation | 101 Miss. 108,57 So. 226 |
| Court | Mississippi Supreme Court |
| Parties | BOB FLOWERS v. STATE |
APPEAL from the circuit court of Warren county, HON.H. C. MOUNGER Judge.
Bob Flowers was convicted of an assault and battery with intent to kill and murder and appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
No brief of counsel in the record.
Appellant was indicted and convicted for an assault and battery with intent to kill and murder Ellen Carroll. The proof showed that he shot at Ellen, but failed to hit her, and that consequently, he was guilty of an assault with intent to kill and murder, and not of an assault and battery with intent to kill and murder. The error complained of is that the court, in effect, charged the jury, for the state that if they believed from the evidence, beyond a reasonable doubt, that appellant was guilty of assault with intent to kill and murder, they should find him guilty as charged in the indictment, thus convicting him of the battery, as well as of the assault. In so far as this instruction charged the jury to find appellant guilty as charged in the indictment, it was erroneous; but this error was perfectly harmless, and could not have prejudiced appellant. It requires no citation of authority to support the statement that, under an indictment for an assault and battery with intent to kill and murder, a conviction can be had for assault with intent to kill and murder. The latter crime is necessarily included within the former. This being true, had the court concluded its charge with a direction to find appellant guilty of an assault with intent to kill and murder, and the jury had so found, both the charge and verdict would have been correct. The crimes of assault, and assault and battery with intent to kill and murder, are mere statutory forms of attempt to commit murder, are both created by the same statute, and the punishment for each is the same. The jury, by their verdict under the instruction complained of, necessarily found the existence of facts which show that appellant was guilty of an assault with intent to kill and murder. While the verdict returned was for assault and battery with intent to kill and murder, the punishment imposed upon appellant was the same as would have been imposed upon him had the verdict been for assault with intent to kill and murder, the crime for which he was, in fact,...
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Ashley v. State
...the jury wrongfully in reaching a conclusion of guilt." Cody v. State, 167 Miss. 150, 163, 148 So. 627, 631. See also Flowers v. State, 101 Miss. 108, 57 So. 226; Calicoat v. State, 131 Miss. 169, 95 So. 318; Wexler v. State, 167 Miss. 464, 142 So. 501; Comings v. State, 163 Miss. 442, 142 ......
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Molphus v. State
...of the refusal of this instruction, and therefore under rule 11 of this court a reversal cannot be based on this ground. Flowers v. State, 101 Miss. 108, 57 So. 226; Jones v. State, 104 Miss. 871, 61 So. 979; Thomas State, 103 Miss. 800, 60 So. 781. Appellant further complains of the refusa......
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McCulloch v. State
...are not ground for reversal. Wexler v. State, 167 Miss. 464, 142 So. 501; Calicoat v. State, 131 Miss. 169, 95 So. 318; Flowers v. State, 101 Miss. 108, 57 So. 226. ...