State v. Peek

• Decision Date: 29 March 1909
• Docket Number: 13,894
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. OSCAR PEEK

48 So. 819

95 Miss. 240

STATE OF MISSISSIPPI v. OSCAR PEEK

No. 13,894

Supreme Court of Mississippi

March 29, 1909

FROM the circuit court of Neshoba county, HON. JAMES R. BYRD Judge.

Peek the appellee, was indicted for manslaughter, and demurred to the indictment. The demurrer was confessed by the state and the indictment amended; thereupon appellee moved to quash the indictment, his motion was sustained, and the state appealed to the supreme court.

The indictment, after the formal requisites, charged that the appellee, on a designated date, did "unlawfully and feloniously kill and slay an infant, the child of J. R Brantley and Mrs. Tressie Brantley, a human being, against the peace and dignity of the state of Mississippi." The demurrer was predicated of the failure to name the party charged to have been killed or that the name of such party was unknown to the grand jury. After confessing the demurrer the state, by leave of court, amended the indictment by inserting herein the word "unnamed" before the word "infant," so that the amended indictment read "did unlawfully and feloniously kill and slay an "unnamed infant," etc. Appellee's motion to quash the amended indictment, was based on the idea that it did "not sufficiently inform defendant of the accusation against him," and the motion assigned "that the state claims that he, the said Peek, while attempting to deliver an unborn child did inflict some sort of wound upon said child with some sort of instrument which produced its death after its birth. If the state relies on such state of facts, then the allegations in the amended indictment are wholly insufficient in law, and the state, in such case should make the allegations in the indictment in such manner as to apprise the defendant of the exact nature of the accusation against him." The state, in answer to the motion, presented a bill of particulars showing that conviction would be sought upon facts practically the same as stated in appellee's motion. The court, treating the bill of particulars as a part of the charge, sustained the motion and quashed the indictment.

Reversed.

George Butler, assistant attorney-general, for appellant.

The indictment as drawn was sufficient in law after verdict, and the defect in not naming the deceased was curable by amendment. Wilkinson v. State, 77 Miss. 705.

But, in my view, the question as to the sufficiency of the indictment could not be raised by a motion to quash. It could be done only in the manner pointed out by the statute, Code 1906, § 1426. But even if we consider the question of the sufficiency of the indictment as properly raised, the result must be the same. The proceeding was manifestly under Code 1906, § 1244; and it is indisputable that at common law, independently of statute, any one who produces the death of another person by culpable negligence is guilty, at the least, of the crime of manslaughter. Wharton on Homicide, 679. Newcomb v. State, 37 Miss. 383.

If it be contended that the statement filed by the district attorney is a bill of particulars, and it and the indictment jointly constitute the charge, the result must yet be the same. In the first place, a bill of particulars is foreign to our practice, especially when it is shown by the defendant's motion that defendant has from the beginning of the trial had full knowledge of the facts relied on by the state to sustain conviction of the charge. Starling v. State, 90 Miss. 255; Richburger v. State, 90 Miss. 806.

The case of Prude v. State, 76 Miss. 513, 24 So. 871, is not in point.

Byrd, Wilson & Richardson, for appellee.

It was not error in the court below to quash the indictment, since the indictment did not sufficiently inform appellee of the nature of the charge against him.

We call the attention of the court to 3 Wharton on Homicide, 885 which states that "Causing...