King v. State
| Decision Date | 01 January 1920 |
| Docket Number | 21095 |
| Citation | 123 Miss. 532,86 So. 339 |
| Court | Mississippi Supreme Court |
| Parties | King Et Al. v. State. |
1. CONSPIRACY. To commit crime, or to do an unlawful thing, is a separate offense, and charge or proof of overt act is unnecessary.
Under section 1084, Code 1906 (section 810, Hemingway's Code) an indictment for conspiracy to commit a crime, or to accomplish any unlawful purpose, or lawful purpose by any unlawful means, is a complete and separate offense, and it is not necessary to charge or prove an overt act.
2. CRIMINAL LAW. Subsequent offense may be proved, to show criminal knowledge or intent.
Under an indictment for conspiracy, a subsequent offense committed by the accused can be proved, for the purpose of showing criminal knowledge or intent.
3. CONSPIRACY. Where evidence also shows an assault and battery an instruction permitting a conviction thereon is error.
Under an indictment for conspiracy, where the evidence of the state also proves an assault and battery, it is error to instruct the jury that they can find the defendant guilty of assault and battery.
E. L King and three others were convicted on an indictment charging an unlawful conspiracy in making assault on and smearing the body of a named female, pursuant to which they unlawfully assaulted and tarred her, and they appeal. Reversed and remanded.
Henry & Canizario, for appellant.
We desire briefly to answer the learned attorney-general's argument as set out in his answer brief to-wit: First, that this honorable court should pass unnoticed (as is suggested by the attorney-general in his brief at page 3), our objection to certain assault instruction asked by the state wherein he argues that the assault charged was merely surplusage. Second, that part of the learned attorney-general's brief regarding the omission of the verb "did" from the indictment of the charge of an actual assault, thereby denying to defendants the right to invoke the rule as announced in the case of Cook v. State, 72 Miss. 517, and followed by this court in a number of cases, down to Herron v. State, 79 So. 289. The attorney-general draws a distinction and a difference between those cases and the case at bar. He says: "These cases differ from the one at bar in that this involves a misdemeanor and the others (Cook case and the others, ibid) were felony cases." Then he suggested that the charge of a consummated assault as laid in the indictment was merely surplusage and immaterial.
We desire to first answer the statement that the failure to employ and use the auxiliary verb "did" in the indictment does not render the indictment-void and subject to be attacked at any time. It matters not in our opinion whether the charge in the indictment is one of felony or a misdemeanor. Certainly no such distinction has been drawn by this court or by any other court which has passed on this very question, and this court said in the Cook case that the verb "did" was the essence of the offense and renders the indictment void and subject to attack at any time. If the indictment therefore is void it is a mere nullity and it makes the indictment itself void rather than to fix the grade of the crime, and the indictment is thus fatally defective.
The second proposition suggested by counsel for the state, "the charge of a consummated assault (in the indictment) was mere surplusage and immaterial here, "is tantamount to a fatal admission on the part of the learned attorney-general that instructions No. 1 and No. 2 given to the state (record, page 11) are essentially erroneous, these two instructions advise the jury that without regard to the conspiracy side of the case they may convict the defendants of assault and battery. In other words the district attorney and the court below must have realized that the state had failed to prove any conspiracy against the defendants, to all of which we agree, so he asked the jury to convict them of assault and battery regardless of the conspiracy charge.
So we have this condition, the state asked the jury to convict the defendants on the charge of assault and battery and the jury evidently in response to these instructions did that thing and convicted the defendants under the assault and battery charge, and now the state by its attorney-general says in effect that if that be true it "was mere surplusage" thus abandoning the district attorney and the trial court and arguing by the same process of reasoning that the two instructions, one and two, were surplusage, and this after conviction. We have then the assault and battery charge surplusage and immaterial matter and therefore should be disregarded when it comes to passing upon the validity of the indictment and the two instructions also surplusage. To our mind both propositions are wrong. If the assault and battery charge should he disregarded in order to sustain the indictment, then the case should be reversed because the instructions one and two are wrong. If the instructions are correct then the indictment is bad and the case should be reversed.
It is further contended by the attorney-general at brief page 2 that the evidence of assault on Ethel Barrett was properly admitted and he cites the rule found at page 637, 12 Corpus Juris. This statement of the rule as laid down by Corpus Juris, is laid down as the general proposition of law and certainly has its qualifications in that the proposition cannot supplant the safeguards given to all by the state constitution, section 22. In other words if the collateral matters or collateral facts, which are the substantial and essential evidence against the defendants in another case under another indictment then pending against them and in the same court, then the inhibition of the constitution that no person shall be placed twice in jeopardy for the same offense would forbid the introduction of those facts in the instant case or in the other case when called for trial.
The constitution provides that any one charged with crime "has a right to demand the nature and cause of the accusations against him." This was intended to secure to the accused such a specific designation of the offense laid to his charge, as would enable him to make every preparation for his trial necessary to his full and complete defense and also such identification of the offense as that he might not be charged by the grand jury with one offense, and put on his trial for another, and so that after his conviction or acquittal, his subsequent protection might be insured, should he again be questioned about the same offense (1852) Murphy v. State, 24 Miss. 590, 1 Mor. St. Cas. 618; (1857) Norris v. State, 33 Miss. 373; 2 Mor. St. (Cas. 1059.
By the second instruction the jury is told that if the jury believe from the evidence beyond a reasonable doubt that the defendants, or either of them, aided and abetted by their counsel, presence or active participation in the assault on Ellis Brooks as testified to by the witnesses then they are guilty as charged in the indictment and the jury shall so find." In other words, by these two instructions the jury is told that if King or Hoxie or any one of the defendants participated in the assault on Ella Brooks then the jury shall find all the defendants guilty. Although Shaw and Ford might have been innocent, still they all must be convicted because one of them was guilty. We insist the instructions are fatally erroneous for they did not leave to the jury to say which one of the defendants, whether one, two or three, were guilty and the other innocent. The jury had no choice under these instructions, they may have felt that one or two of the defendants were innocent, still the court had instructed them to convict all and the jury had to follow the court's instructions. All the instructions of the state were erroneous for the reasons above given if for no other cause.
In the case of Isaacs et al. v. State, 48 Miss. 234, this court held that where several defendants were indicted, tried and convicted jointly under a conspiracy charge, if there was not sufficient evidence against one of them and the verdict of conviction being against all the case must be reversed as to all and we again repeat the proof shows that they were not all guilty.
Each instruction is conclusive in itself and each instruction requires the jury to find all the defendants guilty without regard to the other two instructions. Can this court say the jury did not find that there was no conspiracy and found the defendants guilty of assault and battery? We are inclined to the belief that the jury found the defendants guilty of an assault, as we urged in our principal brief, as the state totally failed to prove conspiracy, and it may have proven that some of the parties made an assault. It were better that ninety-nine guilty escape than for one innocent man to be convicted. An old rule seems to have been reversed as evidently some of the innocent defendants were convicted, perhaps in order that one who might have been guilty would not escape.
We again respectfully submit that the case should be reversed and dismissed. Fred W. Lotterhos, for appellee.
The indictment, in addition to charging conspiracy alleges that afterwards, in pursuance of the conspiracy the appellants assaulted and tarred the woman, the auxiliary very "did" being omitted from the charge of the actual assault. Because of this omission, the appellants invoked the rule given by the court in Cook v. The State, 72 Miss. 517, and followed by the court in a number of cases down to Harron v. The State, 79 So. 289.
These cases differ from the one at bar in that this involves a misdemeanor and the others were felony cases. Aside from this the charge of consummated assault is mere surplusage...
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