Norwood v. State

• Decision Date: 10 October 1938
• Docket Number: 33272
• Citation: 182 Miss. 898,183 So. 523
• Court: Mississippi Supreme Court
• Parties: NORWOOD v. STATE

183 So. 523

182 Miss. 898

NORWOOD v. STATE

No. 33272

Supreme Court of Mississippi

October 10, 1938

Division B

1. CRIMINAL LAW.

Grounds that court erred in refusing peremptory instruction for defendant and other instructions requested by him and in overruling objections to certain 'testimony are applicable to motion for new trial, but not to motion in arrest of judgment on verdict of conviction.

2. INDICTMENT AND INFORMATION.

In indictment for assault with deadly weapon and wounding thereby, "with the intent and in the attempt" to kill and murder named person, charged only assault with intent to kill and murder, not attempt to commit such offense, and hence was not bad as charging two offenses (Code 1930, sections 787, 793).

3. INDICTMENT AND INFORMATION.

An objection that indictment for assault with deadly weapon and wounding thereby with intent and in attempt to kill and murder named person charged two offenses should have been raised by demurrer, as such objection, if valid, appeared on face of indictment (Code 1930, sections 787, 793, 1206).

4 HOMICIDE.

The offense of attempt to commit murder is established by proof that accused did act which, if consummated, would amount to murder, regardless of specific intent to kill certain person while offense of assault with intent to kill and murder specified person is established only by proof sufficient to warrant finding that specific intention to kill existed (Code 1930, sections 787, 793).

5 HOMICIDE.

To establish offense of assault with intent to kill and murder, intent to kill, accompanied by overt act, must be shown (Code 1930, section 787).

HON. EDGAR M. LANE, Judge.

APPEAL from the circuit court of Simpson county HON. EDGAR M. LANE, Judge.

Clyde Norwood was convicted of assault with a deadly weapon and wounding thereby with intent and in attempt to murder, and he appeals. Affirmed.

Affirmed.

Ovie L. Berry, of Mendenhall, and Martin & Farr, of Prentiss, for appellant.

This jury had no instruction on the law that if there were no intent to kill and murder then there was nothing above a mere assault and battery. The gist of the offense is the felonious intent to kill.

Herring v. State, 134 Miss. 505, 99 So. 270.

We submit that this court should take the matter from the jury and grant a new trial. This court has all along maintained its duty under the Constitution to do this when it is apparent that the evidence is not sufficient to convict.

Shelton v. Underwood, 163 So. 828; Beard v. Williams, 161 So. 750.

We submit that the instruction, which is the only instruction asked by the State, is erroneous and misleading under the facts in this case. The indictment purports to charge an assault and battery with intent to kill and murder. Upon examination of the instruction it will be found that it does not at all define what murder is. Then again there is nothing in the instruction to give the jury any guide as to what verdict they might render in case they did not believe the appellant had no willful murder in his heart at the time of the shooting. The instruction is confusing in that the jury could well believe it meant that if he did shoot, then he shot with deliberate design to kill. If appellant shot under heat of passion and fear, then he would not have been guilty of murder, if he, in fact, had killed MeCallum. He would have been guilty of manslaughter only. Then if he did not shoot with deliberate design out of a murderous heart, then he is guilty of nothing above an assault and battery, not a felony.

Martin v. State, 163 Miss. 454, 142 So. 15; Ex Parte Burden, 92 Miss. 14; 129 Miss. 288; 95 Miss. 543, 49 So. 609; 73 Miss. 873, 19 So. 712; Upton v. State, 143 Miss. 1, 108 So. 287.

The motion in arrest searched the record.

State v. McDonald, 152 So. 308; 46 Miss. 270; 45 Miss. 651; 49 Miss. 354; 50 Miss. 81; 59 Miss. 355; 67 Miss. 111; 8 S. & M. 573; 39 Miss. 705.

The error to which we direct the attention of the court is in the indictment. We maintain that this indictment is duplicitous; that it charges in one count separate and distinct offenses, the punishment of each being different. Please note that the indictment charges an assault and charges this assult as committed "wilfully, unlawfully, feloniously and of his malice aforethought," but fails to charge this assault was made into a battery and fails to charge that it was with "intent to kill and murder. "

1 Bishop's New Crim. Law, sec. 23.

There can be no such thing as charging an attempt to commit a crime, wholly different punishment, in the same breath as actually committing it. If the act is completed, it has passed the stage and degree of attempt to commit.

Hairston v. State, 54 Miss. 689; State v. Brown, 28 So. 752; Teat v. State, 53 Miss. 439; Hill v. State, 72 Miss. 527, 17 So. 375.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

We submit that the facts presented strictly a jury question. A man is presumed to intend that which he does and one cannot use a deadly weapon, such as was used in this case, and be heard to say that he did not intend to kill.

Appellant complains that the jury was not instructed as to what verdict they might return in the event it should believe that the appellant did not intend to kill and murder McCallum.

The state had a right to stand on the charge made by the indictment, and the defendant has only himself to blame for not procuring an instruction embodying this proposition. The court cannot give an instruction unless requested in writting and none was requested in this case.

Carter v. State, 149 Miss. 171, 113 So. 177; Cosey v. State, 161 Miss. 747, 138 So. 344.

It is said that the instruction given the state improperly refers to the indictment for elements of the offense charged. We submit that the instruction does not refer to the indictment for any element of the offense, but properly sets out all the elements necessary to sustain a conviction and the words "in manner and form as charged in the indictment" do not add to nor subtract from any of the elements of the offense.

Thompson v. State, 158. Miss. 121, 130 So. 112.

By motion in arrest of judgment, after verdict, the appellant complained that the indictment was duplicitous. If it had been duplicitous, it was a matter which was apparent on the face of the indictment and should have been availed of by demurrer prior to the impaneling of the jury. It could not be availed of after verdict.

Section 1206, Code of 1930.

On the other hand, the precise contention made here by appellant was made in the case of Jimerson v. State, 93 Miss. 685, 46 So. 948, and the court there disposed of such contention and said that the indictment was not duplicitous and also answered appellant's present contention with reference to the use of the words "in the attempt to murder" adversely to his contention.

Sauer v. State, 166 Miss. 507, 144 So. 225.

OPINION

Ethridge, P. J.

Clyde Norwood, the appellant, was indicted in the Circuit Court of Simpson county, on an indictment which reads as follows omitting the formal part: "Clyde Norwood, on the -- day of --, 1937, in Simpson County, State of Mississippi, aforesaid, did then and there wilfully, unlawfully, feloniously and of his malice...