Hill v. State
| Decision Date | 03 March 1930 |
| Docket Number | 28210 |
| Court | Mississippi Supreme Court |
| Parties | HILL v. STATE |
1. ASSAULT AND BATTERY. Indictment held sufficiently to charge assault, as against demurrer.
An indictment which charged "upon their oaths present that ------- in said County, on the 1st day of July, A. D. 1929 did willfully and unlawfully upon the body of Q. D. V. make an assault with his hands and did then and there with his said hands did then and there unlawfully grab, seize, choke and shove the said Q. D. V. contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Mississippi," sufficiently charge an assault.
2. ASSAULT AND BATTERY. Evidence held sufficient to sustain conviction of assault on justice of peace.
On a charge of assault, where it appears from the evidence that the person assaulted was a justice of the peace, and where the term of court, in which a named person was tried for a specified offense and a conviction was had by a jury, a third person made a statement to the justice of the peace indicating his disapproval of the conviction, and the justice threatened to assault the third person, and thereupon the defendant walked up and grabbed the justice of the Peace in the collar and said, "No you won't, I will take your case; you won't jump on any man in town," such evidence is sufficient to sustain a conviction of assault.
APPEAL from circuit court of Clay county HON. J. I. STURDIVANT Judge.
George Hill was convicted of assault, and he appeals. Affirmed.
Judgment affirmed.
B. H. Loving, of West Point, for appellant.
The demurrer should have been sustained.
Blankenship v. State, 95 So. 81; 5 C. J. 712.
Except in the cases of an assault--committed by a person who was at the time drunk, or engaged in the intentional performance of an illegal or mischievous act, the intent to injure or frighten is an essential element of the offense.
5 C. J. 721, sec. 183; 5 C. J. 771, sec. 285; 2 R. C. L. p. 529.
In the case of the State v. Rodgers, 29 So. 13, this court held insufficient an affidavit, which was as follows, omitting the formal parts, to-wit: that Steve Rodgers did make an assault on affiant, by cursing and threatening him with bodily harm and pursuing said affiant.
The evidence is insufficient to sustain a conviction. All the elements of the crime charged against appellant must clearly appear beyond a reasonable doubt and to a moral certainty, from the evidence, before the same is sufficient to sustain this conviction.
One has the legal right to protect a third person from an unjustifiable assault and the commission of a crime against the person of such third person.
2 R. C. L. 554, sec. 34; 5 C. J. 571; State v. Totman, 80 Mo.App. 125.
Forrest B. Jackson, Assistant Attorney-General, for appellee.
By section 1354, Hemingway's Code 1927, all crimes known at common law are made crimes against the state of Mississippi. An assault was a crime under the common law.
To constitute a simple assault, it was not necessary to specifically charge such criminal intent, especially when the indictment set out the facts and circumstances constituting the unlawful assault.
Hussey v. State, 144 Miss. 380, 109 So. 871; Crawford v. State, 146, Miss. 540, 112 So. 681.
The testimony was sufficient to support the verdict of the jury, especially in view of the instructions given for the defendant and the state.
Blankenship v. State, 130 Miss. 725, 95, So. 81; Hussey v. State, 144 Miss. 380, 109 So. 871; Malone v. State, 77 Miss. 812, 26 So. 968; Martin v. City of Laurel, 106 Miss. 357, 63 So. 670.
George Hill was indicted for an assault upon the body of Q. D. Vail. The pertinent part of the indictment reads "Upon their oaths present that George Hill in said county, on the 1st day of July, A. D. 1929, did willfully and unlawfully upon the body of Q. D. Vail make an assault with his hands and did then and there with his said hands did then and there unlawfully grab, seize, choke and shove the said Q. D. Vail contrary to the form of the statute in such case made and provided, and against the peace and dignity of the...
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