White v. State

• Decision Date: 12 March 1934
• Docket Number: 31053
• Citation: 169 Miss. 332,153 So. 387
• Court: Mississippi Supreme Court
• Parties: WHITE v. STATE

153 So. 387

169 Miss. 332

WHITE v. STATE

No. 31053

Supreme Court of Mississippi

March 12, 1934

Division A

Suggestion Of Error Overruled March 26, 1934.

APPEAL from circuit court of Jefferson Davis county, HON. J. Q LANGSTON, Judge.

Dewey White was convicted of assault and battery with intent to kill and murder, and he appeals. Affirmed.

Affirmed.

Martin & Berry, of Prentiss, for appellant.

By reference to the indictment it will be noted that nowhere is the word "murder" used and it is our contention that it is absolutely necessary for the state to charge "kill and murder" to raise the crime from a simple assault and battery to a felony.

There is a difference between an "intent to kill" and an "intent to murder."

State v. Nichols, 8 Conn. 496; Nancy v. State, 6 Ala. 483; Bonfonti v. State, 8 Minn. 123.

A verdict must rest not upon evidence alone, but on an indictment supported by evidence.

Avant v. State, 71 Miss. 78; Thames v. State, 82 Miss. 667.

In all the cases that we have investigated, where the state charged an assault and battery with intent, we have not found a single one that did not charge "assault and battery with intent to kill and murder."

Bailey v. State, 146 Miss. 588; Cannon v. State, 75 Miss. 364; Jimerson v. State, 93 Miss. 686; Gentry v. State, 92 Miss. 141; Thompson v. State, 88 Miss. 223; Montgomery v. State, 85 Miss. 330; Spradley v. State, 80 Miss. 83; Sims v. State, 80 Miss. 385; Miller v. State, 53 Miss. 403; Wood v. State, 64 Miss. 761; Eaverson v. State, 73 Miss. 810; Godwin v. State, 73 Miss. 873; Bateman v. State, 64 Miss. 233; Porter v. State, 57 Miss. 300; Loyd v. State, 70 Miss. 251; Mayes v. State, 64 Miss. 329; Bedell v. State, 50 Miss. 492.

No one can with intent commit manslaughter, for intent carries with it in law malice and there can be no such thing as malice in committing manslaughter. Malice and manslaughter cannot co-exist.

Ex parte Burden, 92 Miss. 14; Williams v. State, 42 Miss. 329; Ike v. State, 23 Miss. 525.

Under our theory of the indictment, there was no charge made above a simple assault and battery, if there were any charge at all.

The court below erred in allowing testimony to go to the jury over the objection of the defendant which tended to show motive on the part of Dewey White to shoot William Bourne.

Gentry v. State, 92 Miss. 141.

We respectfully submit that the court below was in error in allowing the testimony of Sheriff Mathison with reference to certain admissions made by the defendant at the home of Sis Bridges on the night of his arrest to go to the jury for the reason that no proper predicate was ever laid by the state for such testimony and that the same was highly prejudicial to the defendant.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

This indictment is obviously intended to charge an assault and battery with an attempt to commit the crime denounced by subsection (b) of section 985 of the Mississippi Code of 1930.

Formal and technical words are not indispensible in an indictment, and an indictment is sufficient if it charges a statutory offense in the language of the statute or in words synonymous or equivalent thereto.

Wexler v. State, 142 So. 501; Ousley v. State, 154 Miss. 451, 122 So. 731; State v. Pressley, 91 Miss. 377, 44 So. 827; State v. Snowden, 145 So. 622; State v. Hinton, 139 Miss. 513, 104 So. 354; State v. May, 147 Miss. 79, 112 So. 886; Mann v. State, 80 Miss. 398, 31 So. 786.

The conclusion "contrary to the statute in such cases made and provided" is not an essential allegation, but is mere surplusage and, therefore, would have no effect on the validity of the indictment.

Section 1193 of the Mississippi Code of 1930; Smith v. State, 58 Miss. 867.

Even the accidental killing of a human being other than the one intended, is murder, where there is express malice and intent to kill.

Ross v. State, 158 Miss. 827, 131 So. 367.

So that, if one shoots into a crowd, not knowing or caring which one he killed or wounded, it appears that it would be competent to show that he had a motive to kill some particular individual in the crowd.

Argued orally by G. L. Martin and Ovie L. Berry, for appellant, and by W. D. Conn, Jr., for appellee.

OPINION

Cook, J.

The appellant was indicted and convicted in the circuit court of Jefferson Davis county on a charge of assault and battery with intent to kill and murder, and was sentenced to serve a term of five years in the state penitentiary; and from this conviction and sentence this appeal was prosecuted.

A shotgun was fired into the Pleasant Hill Baptist Church at a time when a large crowd was assembled therein for religious services. The load of shot struck and wounded Tolbert Dukes and others who were seated in the building. As to who fired the shot, the testimony is in sharp conflict. Several witnesses testified that they saw appellant at or near the church with a shotgun partially concealed under his clothing, while two witnesses testified that they saw him fire this gun into the church building through an open window. The defense offered by the appellant was an alibi.

The principal assignment of error is based upon the action of the court below in overruling a demurrer to the indictment; the contention being that the indictment is fatally defective, in that it does not charge an intent "to kill and murder" some human being situated in said building, but merely charges an intent "to kill" some human being situated in said building.

Omitting the formal parts, the indictment reads as follows: "That Dewey White in said county and state, on or about the -- day, August, A. D., 1933, did wilfully, unlawfully, feloniously and of his malice aforethought commit an assault and battery upon the person of one Tolbert Dukes, a human being, with a certain deadly weapon, to-wit: a shotgun, by then and there wilfully shooting into Pleasant Hill Church building with said weapon at a time when said church building was occupied by many human beings, among whom was the said Tolbert Dukes, he, the said defendant not then and there knowing or caring who would be thereby killed, but acting of a depraved mind and with the felonious intent of him, the said defendant, then and there to kill some human being situated in said building, and then and there thereby shooting and wounding the said Tolbert Dukes with said weapon, in the manner aforesaid, contrary to section 987 of the Mississippi Code of 1930, and against the peace and dignity of the State of Mississippi."

Section 787, Code 1930, makes an assault and battery with a deadly weapon or other means or force likely to produce death, with intent to kill and murder, a crime punishable by imprisonment in the penitentiary for not more than ten years, while section 985, subsection (b), defines murder as the killing of a human being, without the authority of law, by any means or in any manner "when done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular...