Sauer v. State

• Decision Date: 07 November 1932
• Docket Number: 29983
• Citation: 144 So. 225,166 Miss. 507
• Court: Mississippi Supreme Court
• Parties: SAUER v. STATE

144 So. 225

166 Miss. 507

SAUER v. STATE

No. 29983

Supreme Court of Mississippi

November 7, 1932

Division B

Suggestion Of Error Overruled January 2, 1933.

APPEAL from circuit court of Lincoln county, HON. E. J. SIMMONS Judge.

Mrs Myrtle Love Sauer was convicted of assault and battery with intent to kill and murder, and she appeals. Affirmed.

Affirmed.

A. A. Cohn, of Brookhaven, and Means Johnston, of Greenwood, for appellant.

The crime denounced in the case at bar is a statutory offense, and is based on section 787 of the Mississippi Code of 1930, Annotated.

This section of the code denounces about seven separate and distinct offenses, one of which is "Assault with Intent to Kill and Murder," and another is for "Assault and Battery with Intent to Kill and Murder." It will be noted that the intent to kill and murder is what raised this crime from a common law offense to a statutory offense.

The crime of "Assault and Battery with Intent to Kill and Murder" is a complete and separate offense from "Assault with Intent to Kill and Murder," and each a separate offense just as murder, rape, arson, larceny and burglary; and it is therefore necessary in charging "Assault and Battery with Intent to Kill and Murder," to allege all of the necessary essential elements constituting said crime in the precise language of the statute or its equivalent.

All indictments upon statutes, especially the most penal, must state all circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it; they must pursue the precise and technical language employed in the statute in the definition or description of the offense.

Williams v. State, 42 Miss. 328; Lewis v. State, 49 Miss. 354; Jones v. State, 51 Miss. 724, 24 Am. Rep. 658; Stark v. State, 81 Miss. 398, 33 So. 175; Anthony case, 13 S. & M. 263; Ikes' case, 23 Miss. 525; Riggs' case, 26 Miss. 51; State v. Traylor, 100 Miss. 544, 56 So. 521; State v. Hinton, 139 Miss. 513, 104 So. 354.

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.

State v. Sam, 154 Miss. 14, 122 So. 101; Graves v. State, 134 Miss. 547, 88 So. 364; State v. Burton, 145 Miss. 821, 111 So. 300; Stapleton v. State, 130 Miss. 737, 95 So. 86; Pruit v. State, 116 Miss. 33, 76 So. 761; Jimerson v. State, 93. Miss. 685, 46 So. 948; Brady v. State, 128 Miss. 575, 91 So. 277.

It therefore follows that an indictment for "Assault and Battery with Intent to Kill and Murder," which fails to allege an assault is fatal; and an indictment for "Assault and Battery with Intent to Kill and Murder," which fails to allege a battery in the proper language is fatal.

Our court has uniformly held that an indictment cannot be aided by intendment, nor omissions supplied by construction.

Cook v. State, 72 Miss. 517.

Omission of the essential elements of a statutory offense makes the indictment dead.

Cook v. State, 72 Miss. 517; McCearley v. State, 97 Miss. 556, 52 So. 796; State v. Sam, 154 Miss. 14, 122 So. 101; Hall v. State (Miss.), 44 So. 810; State v. Cannon, 118 Miss. 230, 79 So. 85; Kemp v. State, 121 Miss. 580, 83 So. 744; Riggs v. State, 26 Miss. 51; Jesse v. State, 6 Cush. 100; Sarah v. State, 28 Miss. 267; Wile v. State, 60 Miss. 260; Kline v. State, 44 Miss. 317; Williams v. State, 42 Miss. 328; Jefferson v. State, 46 Miss. 270; Lewis v. State, 49 Miss. 354; Taylor v. State, 74 Miss. 544, 21 So. 129; Herron v. State, 118 Miss. 420, 79 So. 289.

Every battery implies an assault of course, because there can be no battery without an assault; but there may be an assault without any battery.

Montgomery v. State, 85 Miss. 330, 37 So. 835; Bailey v. State, 93 Miss. 79, 46 So. 137; Ainsworth v. State, 5 How. 242.

Since the omitted allegation in the indictment against appellant, to-wit: the word "Did," goes to the very essence of the offense attempted to be charged, the omission thereof was not waived, even though appellant had failed to demur in due course; she was entitled to an arrest of judgment.

Herron v. State, 118 Miss. 420, 79 So. 289; Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; Jefferson v. State, 46 Miss. 270; Willis v. State, 113 Miss. 838, 74 So. 677.

The court below erred in overruling her motion to exclude all of the evidence of what transpired after the commission of the crime.

The general rule is that in prosecution for crime, evidence must be confined to issue, and evidence which shows or tends to show commission by accused of a separate and distinct crime is inadmissible.

Raines v. State, 81 Miss. 489, 33 So. 19; Baygent v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 507, 116 So. 533; King v. State, 66 Miss. 507, 6 So. 189; Dabney v. State, 82 Miss. 252, 33 So. 973.

The giving of instruction No. 1 for the state was fatal error, because it is in conflict with the rules of the law with reference to the force and effect of circumstantial evidence, and tends to minimize and discount instruction No. 2 on circumstantial evidence given appellant, and was in a marked degree inapplicable and misleading.

Instruction No. 1, given the state, is as follows: "The court instructs the jury for the state, that you do not have to know that the defendant, Mrs. Sauer, is guilty before you can convict her, but that in order for you to be warranted in returning a verdict of guilty as charged in the indictment, it is only necessary that you believe from all the evidence and facts and circumstances in evidence, beyond all reasonable doubt and to the exclusion of every other reasonable hypothesis, that the defendant is guilty."

In the case at bar, the jury is left without any sure or certain guide to conduct them to a proper conclusion.

Harper v. State, 83 Miss. 402, 35 So. 572; Josephin v. State, 39 Miss. 647; Hawthorn v. State, 58 Miss. 778; Collins v. State, 71 Miss. 691, 15 So. 42; Perminter v. State, 99 Miss. 453, 54 So. 949; Haywood v. State, 90 Miss. 461, 43 So. 614.

While circumstantial evidence is in its nature capable of producing the highest degree of moral certainty, yet experience and authority both admonish us that it is a species of evidence in the application of which the utmost caution and vigilance should be used.

Algheri v. State, 25 Miss. 589; Simmons v. State, 106 Miss. 732, 64 So. 721; Josephine v. State, 39 Miss. 648; Cryer v. State, 71 Miss. 467, 14 So. 261; Rich v. State, 124 Miss. 272, 86 So. 770.

In order to convict appellant of aiding, assisting and abetting, there must be substantial proof, not only that she was present, but that she committed some overt act.

Harper v. State, 83 Miss. 402, 35 So. 572.

The evidence is insufficient to support a verdict of guilty.

Pitts v. State, 43 Miss. 485.

The evidence in this case does not meet that test, and it is always insufficient where assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which vests mere circumstantial evidence with the force of truth. When the evidence leaves it indifferent, which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another. Such evidence cannot amount to proof however great the probability may be.

Algheri v. State, 25 Miss. 584; Hogan v. State, 127 Miss. 407, 90 So. 99; Sorrels v. State, 130 Miss. 300, 94 So. 209; Webb v. State, 73 Miss. 461, 19 So. 238; Williams v. State, 95 Miss. 671, 49 So. 513; Miller v. State, 99 Miss. 226; Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Haywood v. State, 90 Miss. 461, 43 So. 614; Permenter v. State, 99 Miss. 453, 54 So. 949; Tennison v. State, 79 Miss. 708, 31 So. 421.

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

Mere formal and technical words are not indispensable if the offense is certainly and substantially described in language meaning the same as that set out in the statute.

State v. May, 147 Miss. 79, 112 So. 886; State v. Traylor, 100 Miss. 544, 56 So. 521; Richberger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; Harrington v. State, 54 Miss. 490; Roberts v. State, 55 Miss. 421; Kline v. State, 44 Miss. 317, 2 Mor. St. Cas. 1695; Wexler case, 142 So. 501.

It seems to me that the construction sought to have placed upon this indictment by appellant is too strained and entirely too technical to be upheld by this court.

Technical law is good law under proper circumstances, but not where it shocks common sense. The exact language of a statute need not be used, where what is tantamount is fully set out.

State v. Presley, 91 Miss. 377, 44 So. 827; Mann v. State, 80 Miss. 398.

Continuous acts or a series of events, especially when closely connected in point of time, which lead up to and are necessary or clearly helpful to a correct understanding of the main transaction--which tend to explain and elucidate the conduct and purposes of the parties--are as much of the res gestae as the divert act itself, and are admissible as a part of the transaction.

16 C. J., pages 572, 573; 30 C. J., pages 194, 195; 6 Eneyc. Evidence, pages 610-612; Muse v. State, 130 So. 693; Lee v. State, 134 So. 185; Ross v. State, 158 Miss. 827, 131 So. 367; Prine v. State, 158 Miss. 436, 130 So. 687; Goodman v. State, 158 Miss. 269, 130 So. 825; Sanders v. State, 158 Miss. 234, 130 So. 112; McCormick v. State, 132 So. 757.

Under the established rules of criminal law it may be said evidence of other crimes is never admissible, except for the following purposes: To prove identity, intent, knowledge, malice,...