Miller v. State

• Decision Date: 05 February 1923
• Docket Number: 22962
• Citation: 130 Miss. 730,95 So. 83
• Court: Mississippi Supreme Court
• Parties: MILLER v. STATE

95 So. 83

130 Miss. 730

MILLER v. STATE

No. 22962

Supreme Court of Mississippi

February 5, 1923

APPEAL from circuit court of Covington county, HON. W. H. HUGHES Judge.

1. CRIMINAL LAW. Necessary elements constituting crime to "attempt" to commit an offense stated.

Section 1049, Code of 1906 (section 777, Hemingway's Code) provides that there are two necessary elements to constitute the crime to attempt to commit an offense: First, the intent to commit the offense; and, second,' an overt act towards its commission.

2. INDICTMENT AND INFORMATION. Accused entitled to have particulars alleged to constitute overt act of crime stated in indictment.

Under section 26 of the Constitution of 1890, an accused is entitled to be informed of the nature and cause of the accusation against him. Because of this the accused is entitled to have the particulars or the facts alleged to constitute an overt act stated in the indictment.

3. INDICTMENT AND INFORMATION. Indictment containing mere conclusion as to commission of overt act charges no offense.

Where an indictment merely states that appellant unlawfully and feloniously designed and endeavored to commit the offense of distilling intoxicating liquor, and did then and there perform certain overt acts towards its commission, this statement is not a statement of the facts constituting the overt act, but is a mere conclusion of the pleader, and charges no offense. A demurrer should have been sustained to this indictment.

HON. W H. HUGHES, Judge.

Otho Miller was convicted of an attempt to make intoxicating liquors, and he appeals. Reversed, and defendant held to await action of grand jury.

Judgment reversed.

E. L Dent and T. W. Crawford, for appellant.

We submit there is another reason why this case should be reversed, and that is, the court should have sustained the demurrer to the indictment instead of overruling it. The indictment charges: "Did then and there unlawfully and feloniously attempt, design and endeavor to commit a certain offense, to-wit: to unlawfully and feloniously make and distill intoxicating liquors, and did then and there do and perform certain acts towards the commission of said offense, but was prevented from committing said offense."

The first, third and fifth grounds of demurrer being as follows: 1. The said indictment charges no offense under the statute. 3. The indictment wholly fails to show what overt act, if any, was performed by defendant in his attempt, design, and endeavor to make and distill intoxicating liquors. 5. That said indictment is an attempt to charge the defendant with an attempt to commit a crime under sec. 1049, Code 1906, which indictment wholly fails to comply with either the statute or the common law with reference to charging an attempt to commit a crime."

We take the position, and our position is in keeping with the authorities, that the indictment should have averred that appellant did some specific overt act towards the commission of said offense. That it does not do. It says: "do and perform certain overt acts" towards the commission of said offense. What "certain overt acts" were they? The indictment does not say what acts; we cannot say what acts; and from the indictment, the court cannot say what acts, in determining whether or not the law has been violated. The law is: Section 1049, Code 1906, section 77, Hemingway's Code: "every person who shall design and endeavor to commit an offense, and shall do any overt act towards the commission thereof, but shall fail therein, etc."

Under this statute relating to attempts, there must be: 1. A design and endeavor to commit an offense; and 2. Some direct overt act done towards its commission. The second is an essential element of the offense and should be specifically set forth in the indictment. We know what design and endeavor means, but we do not know what acts "certain overt acts" are, and appellant should know what acts the state would rely on to prove the attempt, in order to be able to intelligently answer the charge and not be taken by surprise, and in order that he would not again be tried for the same offense. The doing of an overt act is the very essence of the offense, and some overt act towards the commission of the offense must be set out in the indictment, and this averment cannot be dispensed with by the state, or waived by the appellant. True appellant took advantage of this defect in the indictment by demurrer but we seriously doubt if the indictment would stand the test under the constitutional requirement that appellant had the right to have the nature and cause of the accusation preferred against him clearly and fully stated, even if no demurrer had been interposed. The grand jury had to know what overt acts appellant did toward the commission of the crime before it could find and return the indictment in a lawful manner. It would not have done for the indictment to have read: "did and performed certain overt acts to the grand jurors unknown," because the statute says "and shall do any overt acts towards the commission thereof." If the grand jurors knew of no overt acts done by appellant towards the commission of the offense, they could never have returned the indictment. The doing of an overt act toward the commission of the offense is essential to the indictment, and such act or acts must be substantially set out in the indictment before there can be a valid indictment under the statute or at common law. Cunningham v. State, 49 Miss. 685; State v. Wade, 59 So. 880; Bishop's Directions and Forms (2 Ed.), No. 100 to 112, inclusive, and 910 and 911; Stokes v. The State, 46 So. 627; Smith v. State, 73 So. 793.

We are not favored with a copy of the indictment in the case of Powell v. The State, 90 So. 625, decided February 20, 1922, Justice HOLDEN being the organ of the court. This case cites and approves the doctrines set forth in the Cunningham and Stokes cases, cited supra. We cite and assert with confidence that the indictment in the Powell case contains the averment that Powell did some of the acts set out in the opinion toward the commission of the offense, but we cannot tell from the opinion that any objection was made to the sufficiency of the indictment. State v. Wade, 59 So. 880; 2 Bishop's New Criminal Procedure, page 39, No. 71: "1. Two Elements. An indictable attempt consists of a specific intent to do something which constitutes a substantive crime, and an act toward but short of its completion. Hence 2. The doctrine of this chapter is that both these elements must be charged in the indictment; the only question is, how minutely. And the proofs should cover both.

12 Standard Encyclopaedia of Procedure, page 469 is following: "An indictment for an attempt must allege both the intent with which the attempted act was done, and an overt act adapted to produce the effect intended." Cases cited in note 76 from the following courts: U. S. Court, and the following states. Arizona, Connecticut, Florida, Illinois, Indiana, Kansas, Maine, Massachusetts, Missouri, Nevada, North Carolina, New York, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia and West Virginia. U. S. v. Ford, 34 F. 26; State v. Frazier, 53 Kan. 87, 36 P. 58, 42 Am. St. Rep. 275; People v. Young, 122 Mich. 292, 80 Am. St. Rep. 582, 81 N.W. 114; 6 Cyc. of Law, and Pr., p. 225; See, also, 3 Ency. of Pl. & Pr., p. 799, and cases cited; Jacob Hogan v. State, 50 Fla. 86; 7 A. & E. Ann. Cases, page 139.

The rule applied in this case, that an indictment must specifically allege and set out the overt act done towards the commission of the offense, is supported by the authorities. See note to above case. 7 A. & E. Ann. Cases, 140; 3 Am. & Eng. Ency. Law (2 Ed.), p. 254; 22 Cyc, p. 363. Also see note 27 thereunder; Harkness v. State, 48 So. 294; First Insurance Companies v. State, 75 Miss. 24, at page 39, 22 So. 99, at page 103.

Section 26 of the state constitution accords to every person charged with crime the right to demand the nature and cause of the accusation. The indictment left it uncertain what the state expected to prove, and for this reason it was impossible for the defendant to prepare his defense, if any he had, to the charge attempted to be preferred against him. "The charge in the indictment must be definite and unambiguous." Montgomery v. State, 65 So. 572; Jesse v. State, 28 Miss. 100; Murphy v. State, 24 Miss. 590; State v. Silverberg, 78 Miss. 863, 29 So. 761.

The common law and the law in...