State v. Atkins
| Decision Date | 01 February 1918 |
| Docket Number | 22877 |
| Citation | 142 La. 862,77 So. 771 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. ATKINS |
(Syllabus by the Court.)
The omission of a word that is essential to the crime intended to be charged in the indictment cannot be supplied by inference so as to hold the defendant, found 'guilty as charged,' guilty of a felony.
W. H Todd, of Bastrop, J. M. Durham, of Oberlin, and George Wesley Smith, of Rayville, for appellant.
A. V. Coco, Atty. Gen., C. J. Ellis, Jr., Dist. Atty., of Rayville (Harry P. Sneed and Vernon A. Coco, both of New Orleans, of counsel), for the State.
O'NIELL, J.
The appellant was tried on an indictment charging that he 'did unlawfully and feloneously shoow one Rich Armstrong with a dangerous weapon, to wit, a pistol, with intent him, the said Rich Armstrong, to kill and slay.' The jury found him 'guilty as charged.' He filed a motion in arrest of judgment, alleging that it was not a crime to show a person with a pistol with intent to kill him, and that therefore he had not been convicted of an offense for which a sentence could be imposed. The motion in arrest of judgment was overruled, and the defendant was sentenced to imprisonment at hard labor in the penitentiary for the term of 18 months. A bill of exceptions was reserved to the ruling.
Opinion.The only explanation we have of the use of the word -- heretofore unheard of -- shoow is suggested in the brief of the learned counsel for the state that, by a typographical error, the letter w was made for a t. We imagine -- in fact we have as little doubt as we could well have without proof -- that the typist who wrote the bill of indictment struck the wrong key. If he or she had left off the w as well as the t, we would be constrained to hold that the defendant was accused and found guilty of frightening away Rich Armstrong, like a bird or fowl, with the intent -- if not then and there perhaps later on -- him, the said Rich Armstrong, to kill and slay. In fact, that would be our conclusion if we should apply the doctrine of idem sonans. That rule is so liberal with regard to the spelling of words that it is possible the jury applied it in this case, and held that the mistake in the indictment was one of spelling, not typography. If so, the jury must have found that the accused did shoo Rich Armstrong; for that is the only verb we know having the same sound. Be all that as it may, the doctrine of idem sonans could not justify our substituting the word shoot for shoow.
The learned counsel for the state refer us to several decisions cited in 22 Cyc. 291, to the effect that an error in spelling which does not obscure the sense of an indictment is not serious. If the error in the indictment before us was a mistake of spelling, it would be quite certain the misspelled word was not intended for shoot, for no one would believe...
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