Funderburk v. State
| Citation | 75 Miss. 20,21 So. 658 |
| Court | Mississippi Supreme Court |
| Decision Date | 29 March 1897 |
| Parties | H. D. FUNDERBURK v. THE STATE OF MISSISSIPPI |
March 1897
FROM the circuit court of Lowndes county HON. NEWNAN CAYCE, Judge.
The facts are stated in the opinion of the court.
Case Affirmed.
S. M. & W. C. Meek, for appellant.
The demurrer to the indictment should have been sustained. Bishop on Criminal Procedure, vol. 9 [2d ed.], sec. 840. "But if the amount of the punishment depends upon the value, it must, in these cases, as in all others, be alleged." State v. Shadley, 16 Ind., 230; Code 1892, § 1209; Ib., § 1453; Wile v. State, 60 Miss. 260. The omission of the word wilfully is fatal. The court below erred in not presenting to defendant a full panel of twelve men each and every time until a jury was completed. Code of 1892, § 1423; Gibson v. State, 70 Miss. 554.
Wiley N. Nash, attorney-general, for appellee.
The reporter does not find a brief for appellee on file.
delivered the opinion of the court. Several beings, human, at least in form, went, at night, to Sandy Swearingen's house, shot into it, and lit a match and set fire to his cotton on the gallery. At the first alarm, his wife and children ran under the bed, and, on the firing of the guns and pistols, and the blaze from the cotton, they ran through a side door to the woods, while Sandy himself, badly wounded, fled to the house of a neighbor, Mr. Tom Blewitt, and got inside of it, hotly pursued by the creatures who had so shockingly outraged his person and his home. Some one of these creatures who pursued him put a shotgun close to Blewitt's door, and shot a hole through it.
Appellant and four others were jointly and severally indicted, and, curiously enough, indicted for malicious mischief in injuring and disfiguring Mr. Blewitt's house.
The indictment reads that defendants "with force and arms . . . did unlawfully and maliciously injure and disfigure the real property of Tom Blewitt, to wit: his residence, by then and there firing a gun into said property, to wit: his residence, contrary, " etc. Objection was made to this indictment because it does not aver that the act was done wilfully, and does not allege the value of the property injured or disfigured.
All the defendants were acquitted, except appellant, and the point is made that, because the case was tried as upon a conspiracy, the acquittal of his co-defendants necessarily should have caused his acquittal.
The other questions raised will sufficiently appear in the disposition made of them in this opinion. The indictment is sufficient under our statute [Code, § 1209], which uses the word maliciously, and this word includes in it the idea of wilfulness, and means even more. 1 Bish. Grim. Proc., sec. 612. Even where a statute used the word wilful only, a very sensible court held it enough to charge that the act was malicious, as that meant wilful and more. State v. Robbins , 66 Me. 324. One may do a wilful act without malice, but not a malicious act not wilful.
The indictment is not void for failing to specify the value of the property, or the money amount of damage. The statute has a twofold aspect, and includes not only the destruction or injury of property, but also its disfiguration. A charcoal sketch on a door, or a bullet hole, may inflict no pecuniary loss which is appreciable, and may yet involve a gross violation of the statute against malicious mischief. Code, § 1209.
A graver difficulty presented itself to us in reading the indictment in the light of the facts on the trial, which seemed to point to no malice against Blewitt or any distinct purpose to disfigure his house, but seemed to indicate malice only towards Sandy Swearingen, who had fled into it as a place of refuge for safety. But we conclude that three distinct offenses were involved in the one act--that is, an assault with intent to kill, a disturbance of family, and malicious mischief.
It cannot be that one who burns or tears down a house can shield himself from a charge of malicious mischief on the defense that his purpose was to murder the owner. Cases in other states, in apparent conflict with this conclusion, will be found to be on the subject of injury to animals out of a spirit of revenge or wanton cruelty. Be this as it may, the conclusion we reach is now pronounced to be the law...
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