Smith v. State
| Decision Date | 05 November 1928 |
| Docket Number | 27387 |
| Citation | 152 Miss. 114,118 So. 710 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. STATE. [*] |
1 HOMICIDE. Indictment for assault with intent to kill and murder held sufficient (Hemingway's Code 1927, section 807).
An indictment charging that the defendant "in and upon one R. G. K. then and there did unlawfully and feloniously make an assault with a certain deadly weapon, to-wit, a pistol and with said pistol did then and there shoot and wound the said R. G. K., willfully, unlawfully and feloniously, and of malice aforethought to kill and murder," etc., is sufficient to charge the crime denounced by section 807 Hemingway's Code of 1927 (section 1043, Code of 1906).
2. INDICTMENT AND INFORMATION. Indictment need not be signed by district attorney; indictment returned in court by grand jury signed by foreman and marked filed by clerk is sufficient.
It is not required that the district attorney sign the bill of indictment. It is sufficient for the indictment to be returned in court by the grand jury, twelve or more appearing in open court, and concurring in the finding, signed by the foreman of the grand jury, and marked filed by the clerk.
3. HOMICIDE. Threats by defendant against person assaulted prior to assault are admissible to show malicious and willful assault.
Threats made by a defendant against the person assaulted, at a time prior to the day of the assault, are admissible to show a malicious and willful assault.
4. CRIMINAL LAW. Conversations between physician and sheriff out of hearing of defendant or person assaulted are inadmissible in prosecution for assault with intent to kill.
Conversations between a physician and a sheriff out of hearing of the defendant or the person assaulted, asking for an X-ray examination of the person whom the defendant claims to have been acting in defense of, in doing the shooting, is not admissible in evidence on the trial of the defendant.
APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.
Allen Smith was indicted on a charge of assault with intent to kill and murder, and from a judgment overruling a demurrer to the indictment he appeals. Affirmed.
Judgment affirmed.
W. A. Blair, for appellant.
J. A. Lauderdale, Assistant Attorney-General, for appellee.
The appellant was indicted on a charge of assault with intent to kill and murder one R. G. Kellum, the allegation, omitting the formal parts, being as follows:
"In and upon one R. G. Kellum then and there did unlawfully and feloniously make an assault with a certain deadly weapon, to-wit, a pistol, and with said pistol did then and there shoot and wound the said R. G. Kellum, with intent him, the said R. G. Kellum, willfully, unlawfully, and feloniously and of malice aforethought to kill and murder," etc.
The indictment was signed by the foreman of the grand jury, but not by the district attorney. It was demurred to, first, on the ground that the indictment was not signed by the district attorney; second, that the indictment failed to charge that the attack was willful; third, that the indictment failed to insert the words "and battery" after the word "assault;" fourth, that the indictment failed to charge that the assault or battery was committed with the malice aforethought of Allen Smith. The demurrer was overruled.
We think the indictment is sufficient to charge the offense denounced by the statute, section 807, Hemingway's Code of 1927 (section 1043, Code of 1906), which provides:
"Every person who shall be convicted . . . of any assault or assault and battery upon another with any deadly weapon, or other means or force likely to produce death, with intent to kill and murder," etc.
We think the words used in the indictment charging that it was unlawfully and feloniously done sufficiently indicate the...
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