Sullivan v. State

• Decision Date: 17 March 1890
• Court: Mississippi Supreme Court
• Parties: JOHN L. SULLIVAN v. THE STATE OF MISSISSIPPI

7 So. 275

67 Miss. 346

JOHN L. SULLIVAN v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 17, 1890

FROM the circuit court of the second district of Marion county HON. S. H. TERRAL, Judge.

The opinion states the case. As the judgment is reversed because of the insufficiency of the indictment, it is unnecessary to set out the facts. For the same reason, the arguments of counsel as to many points presented by the record are omitted.

Judgment reversed.

Calhoon & Green, for appellant.

1. The indictment is fatally defective. Manifestly it was drawn from the Massachusetts decisions, 7 Gray, 324, and Commonwealth v. Bennett, 108 Mass. 27. These decisions were based on a statute defining the offense. But the statute in question merely forbids prize-fighting, and nowhere gives any definition. Under such a statute, it is well-settled that the offense must be charged by the use of such words as are necessary to characterize it. Jesse v The State, 28 Miss. 100; Harrington v. The State, 54 Ib. 490; Lewis v. The State, 49 Ib. 354. See also, 13 S. & M. 263; 23 Miss. 535; 31 Ib. 473; 44 Ib. 317; 28 Ib. 367; 46 Ib. 284.

2. According to Webster, prize-fighting is fighting in public, for a reward or wager. Worcester says it must be for a reward. Under either definition, this indictment is defective.

At common law the offense here complained of did not exist. That is, as to the principals, it was an affray. 4 Stephens's Com., 276; Hawkins's P. C., 486; or riot, or assault and battery. Rex v. Perkins, 4 Car. & P. 537 [19 Eng. C. L. 515]; Rex v. Billingham, Car. & P. 234.

If the fighting was by agreement, there could be no assault and battery. 1 Bish. Cr. L., § 260, note.

The offense being undefined by the statute, the indictment must aver by apt words an affray, riot, unlawful assembly, or assault and battery, in a public place. 2 Bish. Cr. L., § 536.

3. The substantial and essential requisite of fighting, beating, etc., is averted under a videlicet, which is equally fatal to the indictment. Riggs v. The State, 26 Miss. 51; Norris v. The State, 33 Ib. 373.

S. S. Calhoon, for appellant, made an oral argument.

T. M. Miller, attorney-general, for the state.

1. The indictment clearly informed the defendant of the nature and cause of the accusation against him. "Certainty to a certain intent in general" is all that is required. Prize-fighting is so well understood, that an indictment in the language of the statute, giving time and place, would have been sufficient. But here the indictment goes further and avers that the persons met in a prize-ring, by previous appointment, to engage in a prize-fight, for a large sum of money, etc. This so characterized the charge as to leave no ground for surprise, or to prevent the record from being used under a plea of former jeopardy.

2. If we agree with counsel, that a prize-fight is a boxing-match in public, the charge is ample, leaving it to the testimony to establish that it was in public. If prize-fighting is boxing, etc., in public, as defined by Webster, then a prize-ring must be a place where fighting in public is done. Consequently, the plain meaning of the indictment is that it charges a fighting in public. It must have so advised the defendant. But, according to Worcester, it is not necessary that the contest should be in public.

3. It is immaterial whether the parties fought for a wager or a reward. A wager, that is the part lost, is a prize to the winner. The issue of the indictment is that the parties fought for a large sum of money. What difference can it make from what. source the prize comes? The indictment plainly charges that Sullivan fought Kilrain for this money; the language imports nothing else.

If money wagered by the contestants cannot be regarded as a prize, that question would arise on the sufficiency of the evidence, and not on the indictment.

T. M. Miller, attorney-general, made an oral argument.

OPINION

COOPER, J.

The appellant has been convicted of the offence of prize-fighting in violation of an act entitled, "An act to prevent prize-fighting in this state and for other purposes," approved March 7, 1882. The first section of the act declares that, "it shall be unlawful for any person to engage in prize-fighting in this state, and any person engaged in such prize-fighting shall be deemed guilty of a misdemeanor, etc."

The indictment contains two counts, the first for a violation of the above statute, and the second for an assault and battery. Appellant was acquitted under the second count and convicted under the first. The defendant pleaded in abatement, to the indictment, to which pleas demurrers were sustained, and after conviction he moved in arrest of judgment and for a new trial, and, both motions being denied, he prosecutes this appeal. So much of the indictment as is brought into review is as follows: --

"The state of Mississippi, county of Marion. In the circuit court for the second judicial district of Marion county, at the special August term, 1889. The grand jurors of the state of Mississippi, upon their oaths, present that, John L. Sullivan, in the second judicial district of Marion county, Mississippi, on the 8th day of July, A.D. 1889, by and in pursuance of a previous appointment and arrangement, made to meet and engage in a prize-fight with another person, to Wit: with Jake Kilrain, did then and there, and for a large sum of money, the exact amount of which is to the grand jurors aforesaid unknown, did then and there, to wit; on the 8th day of July, 1889, in the second judicial district of Marion county, Mississippi, unlawfully engage in a prize-fight with the said Jake Kilrain, to wit; did then and there enter a ring, commonly called a prize-ring, and did then and there in the said ring, beat, strike, and bruise the said Jake Kilrain; against the peace and dignity of the state of Mississippi.

"JAS. H. NEVILLE, dist. atty."

This count is fatally defective as one charging the appellant with the offence of prize-fighting. The statute neither defines the offense of prize-fighting nor declares what act done shall be a violation of the provisions. The specific offense was unknown to the common law, the participants in such act being only punishable for an affray, riot, or assault and battery according to the circumstances.

In indictments for purely statutory offenses it is sometimes sufficient to charge the offense by using only the words of the statute. This may be done where the language of the statute is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to any other acts than those made unlawful. Our statute against retailing [code 1880, § 1097] is an apt illustration of statutes of this character. It declares that, "It shall not be lawful for any person to sell vinous or spirituous liquor in a less quantity than one gallon, without having first obtained a license in the manner directed by this act." Here the nature and character of the prohibited act is dearly set out, and there is an exclusion of its application as to the only class of persons, licensed dealers, who may sell in the quantity named without guilt.

But where the act prohibited does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the statute, it is not sufficient to indict by the use only of the statutory words; under such circumstances, the indictment must charge in apt language the unlawful act, that the defendant may be advised of the nature and character of the offense with which he is charged, and that he may by demurrer take the opinion of the court whether the facts charged constitute an offense.

In Jesse v. The State, 28 Miss. 100, the defendant had been indicted under a statute which provided that, "If any slave be guilty of burning any dwelling-house, store, cotton-house, gin, or out-house, barn, or stable, etc." The indictment was in the words of the statute, and it was held insufficient, for the reason that the statute was intended to punish a malicious burning only.

A statute declared that, "If any clerk of any court, or public officer, or any other person, shall wittingly make any false entry, or erase any word or letter, or change any record belonging to any court or public office, whether in his keeping or not, he shall on conviction, etc." It was held that the purpose of the act was to prevent such change, erasure, or false entry to the end that some one might be thereby benefited or injured, as were intended or calculated to damnify some person or benefit the person making it, and that an indictment which failed to aver such fact was fatally defective. Harrington v. The State, 54 Miss. 490. The facts developed on the trial of that case disclosed that the defendant, a clerk to the treasurer, erased the number of a warrant that had been erroneously entered on the treasurer's book and substituted the true number. These cases were decided on the ground that a person might under circumstances lawfully do the things forbidden in the most comprehensive manner by the mere letter of the statutes.

"The verdict of a jury does nothing more than verify the facts charged; and if these do not show the party guilty, he cannot be considered as having violated the statute." SHAW, C. J., in Commonwealth v. Odlin, 40 Pick. 275. Where, therefore, the language of the statute is broader than its purpose, and the indictment is in the words of the statute, it cannot be told whether the jury intended to find the defendant guilty of the act forbidden by the statute, or of those only, within its literal but not its true construction. It is therefore necessary for the pleader to depart...