Foreman v. State

• Decision Date: 30 October 1939
• Docket Number: 33648
• Court: Mississippi Supreme Court
• Parties: FOREMAN v. STATE

191 So. 657

186 Miss. 529

FOREMAN v. STATE

No. 33648

Supreme Court of Mississippi, Division B

October 30, 1939

APPEAL from the circuit court of Rankin county HON. PERCY M. LEE Judge.

Archie Foreman was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.

Affirmed.

H. H Bullock, of Brandon, for appellant.

The indictment leaves it to a speculation, whom the defendant intended to kill and murder. The indictment does not state that the defendant intended to kill and murder the said John Horne, Jr., a human being, or another person, as shown by the testimony. "Where intent is an element of the offense it must be alleged substantially in the words of the statute, " 5 C. J. 771, Sec. 286. The indictment does not follow the language of the statute in and provided for in cause of assault and battery and with intent to kill and murder.

Jones v. State, 11 S. & M. 315; Morgan v. State, 13 S. & M. 245; Morman v. State, 24 Miss. 57; Barcus v. State, 49 Miss. 17.

The appellant was charged in the indictment, throughout, with assaulting one "John Horne." The evidence shows only that he assaulted one "John Horne, Jr., " with nothing to show that "John Horne" and "John Horne, Jr., " were one and the same man. The fact is there is a "John Horne" and there is also a "John Horne, Jr., " two living persons; there was no amendment made to the indictment.

McBeth v. State, 50 Miss. 81; Miller v. State, 53 Miss. 403; Cook v. State, 72 Miss. 517; Clark v. State, 100 Miss. 751; Davis v. State, 150 Miss. 797; Thomas v. State, 167 Miss. 504; Cooksey v. State, 175 Miss. 82.

The indictment charges that the crime was committed upon John Horne; the proof was that it was committed upon John Horne, Jr.; and state's instruction charges that it was made upon John Horne, Jr., "as charged in the indictment;" wherefore, the instruction charged an offense against two persons. The jury's verdict was, "We, the jury, find the defendant guilty as charged;" the court thereupon sentenced the appellant to serve a term of five years for a crime as charged in the indictment, committed on John Horne, who is a different person than John Horne, Jr.; and who was not harmed in this difficulty.

Barcus v. State, 49 Miss. 17; Gentry v. State, 92 Miss. 141.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

Appellant argues that the indictment was insufficient because the "intent" was insufficiently alleged. There was no demurrer interposed and no objection to the indictment was ever shown until after the verdict and for this reason we think appellant is in no position to claim that the indictment was technically incorrect and that it does not follow the exact wording of the statute. Without arguing the question, we say that the indictment substantially charged an assault and battery with intent to kill and murder John Horne. On the other hand, we think the indictment, as written, was proper.

State v. May, 147 Miss. 79, 112 So. 866; Wood v. State, 64 Miss. 761, 2 So. 247; Word v. State (Miss.), 178 So. 821; Bailey v. State, 146 Miss. 588, 111 So. 586.

The indictment charged that the assault was committed upon John Horne. At the time John Horne testified, he said his name was John Horne, Jr. Thereafter, throughout the record, both the witness and the attorney referred to the assaulted person as "John Horne." This alleged variance is called to the attention of this court for the first time. Where there is a variance between the indictment and proof and this matter is not raised in the trial court, it cannot be raised in this court for the first time.

Hale v. State (Miss.), 176 So. 603; Hoskins v. State, 106 Miss. 368, 63 So. 671; Woulard v. State, 137 Miss. 808, 102 So. 781.

If there were such a variance, the defect in the indictment was an amendable one and if the defendant did not call the attention of the trial court to this defect in the indictment, the defect was cured by the verdict.

Tillman v. State, 158 Miss. 802, 131 So. 265.

It appears from the evidence that John Horne and John Horne, Jr. were one and the same person, although counsel for appellant goes out of the record long enough to inform the court that, as a matter of fact, there were two John Hornes, a senior and a junior. But, in view of the testimony that the witness was known by both names, the giving of the instruction with the name "John Horne, Jr." (one of the names by which appellant was known) could not have hurt the appellant.

Woulard v. State, 137 Miss. 808, 102 So. 781.

OPINION

McGehee, J.

The appellant...