Richardson v. State

• Decision Date: 04 November 1901
• Citation: 79 Miss. 289,30 So. 650
• Court: Mississippi Supreme Court
• Parties: WESTLEY RICHARDSON v. STATE OF MISSISSIPPI

30 So. 650

79 Miss. 289

WESTLEY RICHARDSON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 4, 1901

FROM the circuit court of Oktibbeha county. HON. EUGENE O. SYKES Judge.

Richardson the appellant, was indicted for an assault and battery with intent to kill and murder Henrietta Pierce. At the November 1900, term of the circuit court he was tried on said charge and acquitted, and at the same term of the court he was indicted by the grand jury under § 969 of the code of 1892. The indictment, as found by the grand jury, was as follows: "The grand jurors of the State of Mississippi elected, summoned, impaneled, sworn, and charged to inquire in and for the body of Oktibbeha county, State of Mississippi, at the term aforesaid of the court aforesaid, in the name and by the authority of the State of Mississippi upon their oaths present, that Westley Richardson, late of the county aforesaid, on the fifth day of November, A.D. 1900, with force and arms, in the county aforesaid, and within the jurisdiction of this court, not being in necessary self-defense, nor in the lawful discharge of his official duty, did, unlawfully and feloniously and intentionally, point a pistol at and towards Henrietta Pierce, and did then and there, while so intentionally pointing said pistol, willfully and feloniously discharge the same, and injure the said Henrietta Pierce, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi." To this indictment the defendant demurred, setting up, among other grounds of demurrer, that the indictment does not follow the language of the statute, and inserts the word "necessary" as a qualification of self-defense. The demurrer was overruled in the court below, and the word "necessary," preceding the word "self-defense," was ordered by the court stricken out of the indictment. Defendant then filed a plea of autrefois acquit, setting up the acquittal above mentioned. To this plea the district attorney demurred. The demurrer to the plea was sustained, and a trial was had, which resulted in the conviction of defendant, and he prosecuted an appeal to the supreme court.

Affirmed.

G. Odie Daniel, B. F. Bell, Jr., and Carroll & Magruder, for appellant.

The plea of autrefois acquit was good, and the court below erred in sustaining the state's demurrer thereto. The pointing of a loaded pistol at one who is in range, is an assault. Cooley on Torts, 184. A successful assault is a battery. Ib. It follows that appellant was charged by the indictment in this case with an assult and battery on the injured party the charge was necessarily embraced in the indictment. This assault and battery was also embraced, as a lesser constituent crime, in the indictment for assault and battery with intent to kill and murder, upon which appellant was tried and acquitted. Jeopardy of the higher is jeopardy of the lower constituent offense. The state cannot begin with the highest and go down step by step, bringing the accused into jeopardy for every dereliction included therein. 1...