Harrell v. State

• Decision Date: 12 December 1927
• Docket Number: 26683
• Court: Mississippi Supreme Court
• Parties: HARRELL v. STATE. [*]

114 So. 815

148 Miss. 718

HARRELL v. STATE. ^[*]

No. 26683

Supreme Court of Mississippi

December 12, 1927

(Division B.)

1. INDICTMENT AND INFORMATION. Conviction of assault and battery with hands and fists held erroneous, under indictment charging assault with pistol with intent to kill (Constitution 1890, section 26).

Where indictment charged crime of assault and battery with intent to kill and murder, describing weapon with which alleged assault and battery was committed with a pistol, conviction of assault and battery with hands and fists was erroneous under Constitution 1890, section 26, requiring that defendant be informed by indictment as to nature and cause of accusation.

2. CRIMINAL LAW. Defendant not objecting to evidence showing assault and battery may attack conviction therefor under indictment charging assault and battery with intent to kill.

Defendant charged with assault and battery with intent to kill and murder by use of pistol, was not precluded from taking advantage of erroneous conviction thereunder for assault and battery with hands and fists because of failure to object to evidence showing that such assault and battery was with hands and fists instead of with pistol, in that such evidence was relevant as tending to show defendant was not guilty of offense charged.

Division B

APPEAL from circuit court of Rankin county.

HON. G E. WILSON, Judge.

Ray Harrell was convicted of assault and battery, and he appeals. Reversed and remanded.

Reversed and remanded.

W. E. McIntyre, for appellant.

"The offense must be strictly proved as alleged." 5 C. J. 774. "An accusation for assault and battery charged that it was done with a pocket knife, and the evidence showed that there was no striking with a knife, nor an attempt to do so. The conviction should be reversed." Johnson v. State, 127 Ga. 277; Wilson v. State, 7 Ala. 66. See, also, Lanier v. State, 57 Miss. 102.

Rufus Creekmore, for appellee.

Under section 1257, Hemingway's Code, and the numerous cases construing it, the rule has become well settled that under an indictment charging an assault and battery with intent to kill and murder the appellant may be convicted of a simple assault and battery.

Counsel, however, seems to insist that there is a variance between the indictment and the proof offered in this case. It will be observed from reading the record, however, that there was no variance in so far as the state's testimony was concerned, because their testimony shows that the assault was made with a deadly weapon, to-wit, a pistol. And, even had there been a variance, it became the duty of the appellant to object to the evidence on that ground, whereupon, under section 1266, Hemingway's Code, the indictment could have been amended to correspond to the proof offered. As he had not objected to the variance at that time, under section 1168, Hemingway's Code, he would have been barred from raising that point after the verdict has been returned in the cause.

OPINION

ANDERSON, J.

Appellant was indicted in the circuit court of Rankin county of the crime of assault and battery with intent to kill and murder, and was convicted under the indictment of an assault and battery, and from that judgment he prosecutes this appeal.

The indictment charged that:

Appellant "did unlawfully and feloniously make an assault with a certain deadly weapon, to-wit, a pistol; and with said deadly weapon and pistol did then and there willfully and feloniously strike, beat, bruise, and wound the said Richard Copeland, with the willful and felonious intent then and there him, the said Richard Copeland, unlawfully, feloniously, and of his malice aforethought, to kill and murder."

The evidence was conflicting as to whether the alleged assault and battery was committed by appellant with a pistol or with his hands and fists. The court charged the jury for the state that if the alleged assault and battery was committed by appellant either with his hands and fists or with a pistol, the jury should find him guilty of an assault and battery. The court refused an instruction requested by appellant, that, under the indictment if the assault and battery was committed by appellant with his hands and fists, and not with a pistol, they should return a verdict of not guilty. The action of the court in so instructing the jury for the state, and refusing to instruct the jury to the converse for the appellant, is assigned and argued as error. The question therefore is whether under the law a defendant charged in an indictment with the crime of assault and battery with intent to kill and murder, where the indictment describes the weapon with which the alleged assault and battery was committed, can be convicted of an assault and battery inflicted by a weapon entirely different from that set out in the indictment. We think not. Lanier v. State, 57 Miss. 102, 5 C. J. 774, section 296.

Under the Constitution (section 26) a defendant is entitled to be informed by the indictment against him as to the nature and cause of the accusation which he is to meet. This provision of the Constitution has a twofold purpose. It is to secure to the defendant, charged with crime, such a specific description of the offense as will enable him to make preparation for his trial, and also such an identification of the offense as will insure him against a subsequent prosecution therefor. Noonan v. State, 1 S & M. 562; Murphy v. State, 24 Miss. 590; Garrard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb...