Malone v. State
| Decision Date | 15 January 1900 |
| Citation | 26 So. 968,77 Miss. 812 |
| Court | Mississippi Supreme Court |
| Parties | JESSE MALONE v. STATE OF MISSISSIPPI |
March 1900
FROM the circuit court of Attalla county, HON. WILLIAM F. STEVENS Judge.
Appellant and another person were indicted jointly for an assault with intent to kill and murder. The section of the code mentioned in the opinion is in these words:
The opinion states the facts.
Affirmed.
C. H Campbell, for appellant.
The right to a separate trial, where two or more are jointly indicted for a felony, is given to a defendant. Code 1892, § 1417. The state has no right, having elected to indict jointly, to force a severance on defendants, or either of them. Yet, in this case, when one of the defendants was granted a continuance, the state then urged and procured an immediate trial of appellant, thus by indirection securing a separate trial of appellant, forced a severance upon him. Can the prosecutor by indirection do what cannot be done directly?
The appellant's co-defendant was accounted for; a continuance was granted because of illness. This, unless appellant asked a severance, carried over the entire case.
The evidence in this case disproved, rather than established, the commission of an assault by appellant. An assault, as defined by this court, is an attempt or offer with force or violence to do a corporal hurt to another. Whether from malice or wantonness, intention to do injury is essential. Vaughn v. State, 3 Smed. & M., 553; Morman v. State, 24 Miss. 54; Smith v. State, 39 Miss. 521. The appellant was guilty of disturbing religious worship, but did not commit the crime for which he was indicted, or the constituent crime of which he was convicted.
Argued orally by Wiley N. Nash, attorney-general, for appellee.
Press Malone and Jesse Malone were jointly indicted in the circuit court of Attalla county, and it was presented that they with guns, in and upon a large number of persons assembled for religious worship, to wit: Ike Roly, Bunch Harmon, Bill Culpepper, and many other persons whose names are to the grand jurors unknown, feloniously an assault did make, and at and towards and against said persons did shoot said guns, etc., with intent, etc.
At the September term, 1899, of the court, Press Malone being sick a continuance of the case was had as to him, and Jesse Malone was put upon his trial, over his objection to being tried in the absence of his co-defendant,...
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Franklin v. State
... ... We find no application for a continuance nor do we find ... anything which was called to the attention of the court ... calculated to cause it to pass upon this precise question ... Whether ... there was a severance or not can make no difference now ... Malone ... v. State, 77 Miss. 812, 26 So. 968 ... During ... the voir dire examination of the jury, one Hammie Fortenberry ... was examined. At that time this juror stated that from what ... he had heard the defendants were guilty. Thereupon, the court ... reprimanded the juror, set him ... ...
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Davis v. State
... ... Section 1490, Code of 1906 (section 1248, Hemingway's ... Code). Whether or not severance shall be granted is no longer ... discretionary with the trial court, provided the statute is ... complied with in making application therefor. We think the ... holding of this court in Malone v. State, 77 Miss ... 812, is decisive. [144 Miss. 554] ... II ... Under many other holdings of this court, the officer's ... testimony was clearly inadmissible for the reason that this ... evidence was obtained through an illegal search, there being ... no warrant ever issued ... ...
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Duckworth v. State, 54868
...(1957); Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955); Bolin et al v. State, 209 Miss. 866, 48 So.2d 581 (1950); Malone v. State, 77 Miss. 812, 26 So. 968 (1900). Neglected is the final sentence of that same paragraph: "We hold that the word 'may' in Sec. 99-15-47 should be given its o......
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Faulkner v. State
... ... other of our cases, but it vigorously reaffirms the rule as ... first above stated when the indictment is drawn as in the ... case here before us. [170 Miss. 198] It is to be particularly ... noted that we are not here considering a case or a conviction ... of assault and battery, Malone v. State, 77 Miss ... 812, 26 So. 968, but the statutory offense of assault and ... battery with intent to kill and murder ... This ... record is destitute of any testimony upon which any fair or ... reasonable inference can be drawn that the accused had any ... specific intent to ... ...