Thames v. State

• Decision Date: 02 November 1903
• Citation: Thames v. State, 82 Miss. 667, 35 So. 171 (Miss. 1903)
• Court: Mississippi Supreme Court
• Parties: FRANK THAMES v. STATE OF MISSISSIPPI

35 So. 171

82 Miss. 667

FRANK THAMES v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

November 2, 1903

FROM the circuit court of Newton county. HON. JOHN R. ENOCHS Judge.

Thames appellant, was indicted, tried, and convicted of an assault and battery with intent to kill and murder one Solomon Gardner, and appealed to the supreme court.

The facts may be inferred from the opinion of the court and the instruction quoted therein.

Reversed and remanded.

J. R Byrd and Thomas Keith, for appellant.

The fourth instruction given for the state in which the court told the jury, that if they believed that the defendant shot at Gardner with intent to wound and kill him, they should find defendant guilty as charged. The court, by using the word "wound," told the jury to find the defendant guilty as charged if they believed he intended to commit simply an assault and battery or if he intended to commit murder. The defendant is charged with an assault with intent to kill and murder, and surely the jury should not have been told to find him guilty as charged if they believed he intended to commit simply an assault and battery.

William Williams, attorney general, for appellee.

The fourth instruction given for the state in which the word "wound" is used is a correct enunciation of the law. Code 1892, § 967.

"Every person who shall be convicted of shooting at another . . . willfully . . . is guilty of assault and battery with intent to kill, and shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not more than $ 1,000, or by imprisonment in the county jail not more than one year, or both.

By a careful reading of the section of the code above cited, taking into consideration the punctuation, it will be seen that the legislature intended that one who willfully shoots at another is guilty of assault and battery with intent to kill and murder. It would be absurd to say that one might shoot at another while fleeing, and, in all probability kill, and then offer as a defense that his intention was simply to wound and not kill him. The word "wound" was not improperly used in the instruction. If it was improper to use the word in the instruction, it will be seen from the record that the verdict was manifestly right, and if so, it will not be disturbed because of an erroneous instruction. Vance v. State, 62 Miss. 137.

OPINION

WHITFIELD, C. J.

This was a...