Lott v. State

• Decision Date: 23 October 1922
• Docket Number: 22502
• Citation: 130 Miss. 119,93 So. 481
• Court: Mississippi Supreme Court
• Parties: LOTT v. STATE

93 So. 481

130 Miss. 119

LOTT v. STATE

No. 22502

Supreme Court of Mississippi

October 23, 1922

1 HOMICIDE. Instruction, omitting intent to kill on trial for assault with such intent, erroneous.

An instruction to find defendant guilty of assault and battery with intent to kill and murder, if he willfully, unlawfully etc., committed an assault and battery on the complaining witness with a stick, was erroneous, as leaving out the essential element of intent to kill and murder.

2. HOMICIDE. Whether stick was a deadly weapon was a question for the jury.

Whether a stick with which an assault was committed was a deadly weapon was a question of fact to be decided by the jury, and it was error for the court to tell the jury that its use was prima-facie evidence of an intent to kill and murder.

3 HOMICIDE. Instruction on trial for assault with intent to kill erroneous, as omitting the element of intent.

An instruction that, though defendant struck the complaining witness while he was choking a third person and for the purpose of defending such third person, the jury should find him guilty of assault and battery with intent to kill and murder if he struck with greater force than was necessary was erroneous, as failing to include the necessary element of intent to kill and murder; it being a question of fact whether the blow was struck with such intent.

4. CRIMINAL LAW. Erroneous instructions on assault with intent to kill held not cured by others stating the law correctly.

Erroneous instructions that use of a stick was prima-facie evidence of intent to kill and murder, that if defendant willfully, etc committed an assault and battery with the stick introduced in evidence he was guilty, and that, even though he acted in defense of another, he was guilty if he used greater force than was necessary, were not cured by other instructions giving the correct rule.

HON. G. WOOD MAGEE, Special Judge.

APPEAL from circuit court of Marion county, HON. G. WOOD MAGEE, Special Judge.

Guy Lott was convicted of assault and battery with intent to kill and murder, and he appeals. Reversed and remanded.

Judgment reversed, and case remanded.

Davis & Langston, for appellant.

Instruction number two is erroneous and has been condemned by the court. It will be remembered that the stick which was used, or which was supposed to have been used, was introduced in evidence and was before the jury, yet the court told the jury that this stick was a deadly weapon and that the use of it was prima-facie evidence of intent to kill and murder. It was the intent to kill and murder which must raise the case from a misdemeanor to a felony and it was for the jury to say whether or not this stick was a deadly weapon, yet the court decided this all important fact himself.

A stick is not made a deadly weapon by statute and this court in speaking through Judge TERRAL, reported in 80 Miss. 381, in the case of Sims v. The State, says that unless the weapon used is by statute made a deadly weapon, then it is for a jury to say whether or not it is indeed a deadly weapon. So that in this case the very gist of the offense was decided by the court and the important fact to be decided by the jury was taken away from them, and for this reason alone the case should be reversed.

Instruction number three is erroneous for several reasons. It says that in part "you should find the defendant guilty as charged if you should further believe the defendant struck the said Berry with greater force than was necessary to strike him in defending said Arthur Rowley. This instruction absolutely ignores the evidence in the case. It simply tells the jury that they may believe it without regard to the evidence and the word, evidence is not used in the entire instruction. Besides the instruction eliminates and ignores all the essential elements of the crime of assault and battery with intent to kill and murder. It simply brings it down to this proposition: It told the jury that regardless of whether or not Lott struck Berry through malice aforethought or with intent to kill and murder or feloniously or what not, that just so he struck Berry a little bit harder than he should, then he is guilty. This is not the law, never has been and never will be, and we deem it unnecessary and useless waste of time to bore the court with decisions for this proposition.

In view of the error in granting these two instructions which could not possibly be cured by the instructions for the defendant, we submit this case, feeling absolutely confident that it will be reversed and remanded.

H. Tolbot Odom, special assistant attorney-general, for the state.

Instruction No. 2 vigorously attacked by counsel, is as follows: "The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant Guy Lott did willfully, unlawfully, feloniously, and of his malice aforethought commit an assault and battery upon the person of John Berry with the stick introduced in evidence, then the jury should find the defendant guilty as charged in the indictment; and the court further instructs you that the use of a stick such as has been introduced in evidence is prima-facie evidence of an intent to kill and murder."

Two objections are made to the foregoing instruction: First, it is contended that the court peremptorily instructed the jury that the stick used by the appellant in making the assault was a deadly weapon, and it is claimed that this is error, because a stick is not per se a deadly weapon, nor made so by the statute. Second, it is contended that it was error to instruct the jury that the use of such a stick was prima-facie evidence of an intent to kill and murder. Both of these objections to the foregoing instructions may be considered and disposed of together, for the reason that the only question of importance, and on which this instruction must stand or fall is, did the court err in holding the stick to be a deadly weapon, instead of submitting the question to the jury. If not, then there is no merit in the objection to the latter part of the instruction telling the jury that the use of such a stick was prima-facie evidence of intent to kill, because this is the correct rule of law, and if the stick were a deadly weapon then its deliberate use was prima-facie evidence of the intent to kill. This rule of law is well settled and will not be disputed.

Now let us see whether or not the court invaded the province of the jury in holding that the stick introduced in evidence was a deadly weapon.

Suppose that the weapon had been a hatchet, pick, ax, a sword, or some other similar instrument, would there be any room for argument as to whether or not such implement would be a deadly weapon when used to strike a human being over the head? If there could be no doubt that such implements were deadly weapons, would not the court be within its proper limitation when holding them to be deadly weapons, notwithstanding the fact that they are not enumerated as such by the statute. I think so, because there would be nothing for the jury to decide on this proposition.

Then if this reasoning be sound and the conclusion correct, it would necessarily follow that the trial court, where the weapons employed, such as ax-handles, sticks of unusual size and weight, were before the court, and no reasonable mind could reach any other conclusion but that same was a deadly weapon, why would it be error to so instruct the jury? Some sticks or clubs would be equally as deadly as a pistol when in the hands of a strong man as the evidence showed appellant to be. It must be remembered that the trial court had the stick, or timber, before it, and that this court could not possibly say that the court was wrong unless it could see and examine the weapon employed.

While it might have been a safer procedure to submit this question to the jury, and it might be dangerous to vest too much authority in one person, it must be admitted that in numerous cases the question of whether or not certain weapons are deadly could never be doubted. Here the trial court had full opportunity to observe. I do not feel that he has overstepped his legal bounds in instructing the jury peremptorily that such a weapon was a deadly weapon, when used as the undisputed testimony shows it was used in this case.

The case of Sims v. The State, reported in 80 Miss., at page 381 is cited and relied on by appellant. In my opinion this case is not necessarily controlling here, because in that case the only question before the...