Mann v. State

• Decision Date: 14 April 1902
• Citation: 80 Miss. 398,31 So. 786
• Court: Mississippi Supreme Court
• Parties: JAMES MANN v. STATE OF MISSISSIPPI

31 So. 786

80 Miss. 398

JAMES MANN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 14, 1902

FROM the circuit court of Leake county. HON. JOHN R. ENOCHS. Judge.

Mann appellant, was defendant in the court below, was convicted of, and sentenced for, crime and appealed to the supreme court. The only question was as to the sufficiency of the indictment, to which a demurrer was interposed, but which the court below overruled. The indictment, save its formal parts is set out in the opinion of the court.

Affirmed.

D. E Sullivan, for appellant.

Mann made an assault on whom? We suppose that he assaulted Morris as Morris was, on some occasion or other, on or after November 12, 1900, shot by Mann. The assault was made on some one with a pistol, as no other firearm is mentioned in the indictment. But there is ample room for the assault to have been made on some one with a pistol loaded with bullets and for the shooting to have been done with a shotgun loaded with bird-shot.

Who knows from the indictment that the assault was made and the shooting done with a deadly weapon, as it must have been to constitute the crime intended to be charged? And, again, "the said pistol being a deadly weapon." Being a deadly weapon when? Now (at the time of the drawing of the indictment) and not at the time of the shooting.

"It is said that the word being existens will, unless necessarily connected with some other matter, relate to the time of the indictment rather than the offense; and, therefore, an indictment for a forcible entry on land, being the prosecutor's freehold, without saying 'then being' was held insufficient." Bishop on Criminal Procedure (3d ed.), sec. 410.

"Then and there" should have been used to show that the pistol was a deadly weapon when the assault was made, and not at the time the indictment was drawn, and also to show that the shooting and wounding was done at the same time and place, that the assault was made, and to exclude the idea that it was done at some other time and place. "Then and there" should also have been used to show that the intent to kill and murder existed at the time and place of the assault, the shooting and wounding.

The elements of time and place, and consequently the allegations of them, pertain to no one part of an offense and the accusation of it, but are essential to all. 1 Bishop on Criminal Procedure (3d ed.), sec. 407.

The constitution secures the accused the right to have the facts which constitute the alleged crime stated in the indictment with sufficient certainty to enable him to know with what offense he is charged and to prepare his defense, both by plea of not guilty and...