Spradley v. State

• Decision Date: 17 March 1902
• Citation: 80 Miss. 82,31 So. 534
• Court: Mississippi Supreme Court
• Parties: GEORGE SPRADLEY v. STATE OF MISSISSIPPI

31 So. 534

80 Miss. 82

GEORGE SPRADLEY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 17, 1902

FROM the circuit court of, second district, Chickasaw county. HON EUGENE O. SYKES, Judge.

Appellant Spradley, was indicted, tried, and convicted of a felonious assault and battery with intent to kill. The indictment was as follows, leaving off the formal parts: "Geo Spradley, late of the district and county aforesaid, on the 15th day of April, 1901, with force and arms, in the district and county aforesaid, and within the jurisdiction of this court, in and upon one Frank Brown did unlawfully and feloniously make an assault with a certain deadly weapon to-wit, a blade of iron known and called a 'grass blade,' or 'scythe blade,' and with said blade of iron did then and there willfully and feloniously strike cut, and wound the said Frank Brown, with the willful and felonious intent then and there him, the said Frank Brown, to willfully and feloniously, and of his malice aforethought, kill and murder; contrary to the statutes in such eases made and provided, and against the peace and dignity of the state of Mississippi." The defendant demurred to this indictment, assigning as cause of demurrer that "the indictment does not charge that an assault was made with a deadly weapon, or other means of force likely to produce death." The demurrer was overruled. The defendant was convicted, and sentenced to the penitentiary, and appealed to the supreme court.

The opinion of the court contains a statement of additional facts.

Reversed and remanded.

T. J. Buchanan and L. P. Haley, for appellant.

The defendant objected to the testimony in regard to Pannell identifying Spradley, because Pannell was not certain that defendant had committed the crime, nor did Pannell attempt to arrest defendant. He could not deputize or authorize Brown to make the arrest. The court would not permit the defendant to ask Brown, or Pannell, or Jones what they did when they got to jail, where the sheriff lived.

Nor would the court permit defendant to ask Brown why he was going to arrest defendant; nor what language was used to the negro porter when they came into the hotel to make the arrest.

Instruction number 2 for the state should not have been given. It states that an officer or private person may arrest any person without warrant, etc., when all the testimony shows that the defendant was informed that they had a warrant for his arrest, and that he demanded to see it. The instruction reads for "any indictable offense," when § 1375, code 1892, reads for "an indictable offense;" substituting the word "any" for "an" at this place makes the instruction too broad and misleading to the jury. It further states, if Brown and others had reason to believe that defendant had committed a felony, does not comply with § 1375, code 1892. The testimony shows that no one but Brown attempted to arrest defendant. and that Brown did not see him commit a felony, nor did he see the negro whom defendant was charged with striking. It further shows that no one but Pannell saw, or claimed that he saw, anyone strike the negro, and that Brown was relying solely on what Pannell told him. Pannell testifies, "I told these boys I thought Spradley had cut a negro; I did not know for certain."

Section 1375, code 1892, is the section under which it is attempted to justify Brown in seeking to arrest Spradley. This section does not apply, because Brown informed the defendant that he had a warrant for his arrest. The above section is "without warrant."

In the latter part of the instruction it charges "with intent to kill and murder," when it should read, "with the felonious intent to kill and murder." We think the omission of the word "felonious" is fatal, because a felonious intent is the very gist of the offense. It is clear from the testimony that the jury based their verdict on this instruction, which is clearly misleading and erroneous.

Monroe McClurg, attorney-general, for appellee.

If it should be conceded that Brown was a trespasser, this fact alone did not justify appellant in making a deadly assault upon him. The limit of his right was to repel force by like force; to eject Brown, not to assail him with a deadly weapon with intent to kill and murder. One who so assaults a trespasser is not justified in his vicious act by the mere fact that the person assaulted was a trespasser. He may defend his castle, or his person therein, with all force necessary to resist or expel him, but certainly not to slay him. When he went beyond the lawful limit, he became the aggressor, and was responsible for the excessive assault and battery.

The indictment specifically and most clearly charges an assault and battery, and, as counsel correctly states, the proof sustains the idea rather than that of a mere assault.

Section 1372 of the code expressly provides that, for crimes and offenses, 'private persons may also make arrests." This they may do by the same authority that...