Flowers v. State

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Flowers v. State, 101 Miss. 108, 57 So. 226 (Miss. 1912)
• Decision Date: 29 January 1912
• Docket Number: 15,528
• Parties: BOB FLOWERS v. STATE

57 So. 226

101 Miss. 108

BOB FLOWERS v. STATE

No. 15,528

Supreme Court of Mississippi

January 29, 1912

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.

OPINION

SMITH, J.

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...