Summary
In Sloan v. State, 158 Miss. 138, 130 So. 110, this Court said: "When a case is such that the conviction is adequately sustained on the testimony of the defendant himself, as is this case, any error in order to work a reversal must be one which obviously is obnoxious to the indispensable fundamentals of criminal procedure; and there is no such error in this record."
Summary of this case from Lord v. StateOpinion
No. 28559.
October 6, 1930. Suggestion of Error Overruled, November 3, 1930.
CRIMINAL LAW.
Where conviction is sustained by defendant's own testimony, error, to work reversal, must be obviously obnoxious to indispensable fundamentals of criminal procedure.
APPEAL from circuit court of Itawamba county. HON.C.P. LONG, Judge.
I.L. Sheffield, of Fulton, for appellant.
The difference between an assault and battery and an assault and battery with intent to kill and murder, is the intent with which it is done. The assault and battery may be committed with a deadly weapon, or without a deadly weapon, but it is the felonious intent to kill and murder which raises the crime from simple assault and battery to an assault and battery with intent to kill and murder.
Toler v. State, 108 So. 443, 147 Miss. 79.
In the case at bar, the defendant shot, but did not kill, the bullet inflicting a slight flesh wound, but all the evidence shows that the defendant made no further effort to shoot the prosecuting witness, after she stopped.
In the case of Herring v. State, 99 So. 270, Judge ETHRIDGE rendered the opinion of the court and spoke at length of the necessity of proving a specific intent to kill.
Chas. S. Mitchell, of Tupelo, for appellant.
There is no doubt in my mind but that the most grievous of all errors possible of commission by a court was committed in the trial of this case in the court below. This error goes to the giving for the state of instruction No. 2 as follows:
The court charges the jury for the state that the intent may be presumed from the use of a deadly weapon. It is beyond my conception that the giving of such an instruction in the trial of a criminal case is not error.
It is perfectly possible that, under the facts of this case, Luther Sloan, as a reasonably prudent man, could have concluded that if he joined in a hand to hand combat with the girl, Nettie Moses, that it would have given the other members of the Moses family an excuse to come to her rescue and kill him, or severely beat him. It is perfectly possible indeed probable that a careful person would conclude that the proper course to take to prevent the loss of life would be to wound the one advancing and check the matter at that point. This was the defense as I understood it, that Mr. Sloan offered. The proof shows beyond dispute that he shot toward her legs and it is reasonable to see that if he had intended killing her he would not have shot her in such a place.
Forrest B. Jackson, Assistant Attorney-General, for the state.
The accused testified in his own behalf. The jury heard all the facts and circumstances surrounding the difficulty in question. He was represented by learned and ample counsel. He was given a fair and impartial trial in the lower court. The errors complained of at most are merely technical errors, and there are none such as would justify this court in reversing this case, and it should be affirmed.
Argued orally by Chas. S. Mitchell, and I.L. Sheffield, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for the state.
Appellant is a grown man with a family. He and his neighbors, the Moses family, were not friends. On the day in question, Nettie Moses, a girl of sixteen years and of less than average size and weight, attempted to go with a pail to a nearby spring, located across the line on appellant's property. Appellant accosted her at or near the line, and ordered her not to proceed farther. The order was disregarded and appellant shot and wounded her with a pistol. His story was that the girl had seized a stick and was about to assault him. We must refrain from language apt to characterize his conduct, and will say only that on his own testimony the jury was amply warranted in returning the verdict of guilty, and the court in imposing the penitentiary sentence which was pronounced.
When a case is such that the conviction is adequately sustained on the testimony of the defendant himself, as is this case, any error in order to work a reversal must be one which obviously is obnoxious to the indispensable fundamentals of criminal procedure; and there is no such error in this record.
Affirmed.