Summary
In Blaine v. State, 196 Miss. 603, 608-09, 17 So.2d 549, 550 (1944), decided under our former law defining assault and battery with intent to kill but applicable, nevertheless, to the new law and the facts before us, the defendant argued that a battery with hands and feet was not a "means or force likely to produce death.
Summary of this case from Jackson v. StateOpinion
No. 35390.
April 10, 1944. Suggestion of Error Overruled, May 8, 1944.
1. ASSAULT AND BATTERY.
In prosecution for assault and battery with means likely to produce death in resisting an officer lawfully attempting to arrest another person, testimony presented an issue for jury (Code 1942, sec. 2011).
2. ASSAULT AND BATTERY. Criminal law.
Common knowledge precluded holding that battery with hands and feet would never be "likely to produce death" within meaning of statute denouncing any assault or battery with any means or force likely to produce death in resisting an officer lawfully attempting to arrest another person (Code 1942, sec. 2011).
3. ASSAULT AND BATTERY.
As used in statute denouncing any assault and battery with means or force "likely" to produce death in resisting an officer lawfully attempting to arrest another person, the quoted word borrows meaning from both possibility and probability and stands midway between their respective connotations (Code 1942, sec. 2011).
4. ASSAULT AND BATTERY.
Whether means or force used in a particular assault and battery in resisting an officer lawfully attempting to arrest another person was "likely to produce death" within meaning of statute denouncing any assault and battery with such means or force, except in cases where it would be absurd to so hold, is a question for jury which may give due weight to the parties, and place, the means used and the degree of force employed (Code 1942, sec. 2011).
APPEAL from the circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
J.D. Guyton, of Kosciusko, and Henry L. Rodgers, of Louisville, for appellant.
The evidence in this case does not justify a verdict of guilty of the felony charged, that being the point raised by the first and second assignments of error.
The first assignment goes to the state's second instruction, which fails to define the term "means and force likely to produce death" so as to enable the jury to fairly apply the law to the evidence. The jury are left to determine for themselves what constituted means and force likely to produce death. The evidence shows that the only means used was the defendant's fist and to some extent his boots. The evidence is not very clear as to how much defendant stomped the town marshal with his boots. There is more about this in the instruction than there is in the evidence. The marshal says he was stomped in the face and on the head and in the left side. No witness says anything about the marshal being stomped in the stomach, this being found in the instruction only. The severity of this stomping is not shown by the evidence. The fact that the doctor only cleansed the bruised places, strapped him, and put him to bed that night, and did not call on him any more, and the further fact that the marshal was up the next day, and just a few days afterwards went to Kosciusko, with no showing of complaints of pain, would indicate that Dr. Taylor was right in saying that the bruises were about like that of any fist fight. What then are the means and force likely to produce death here used? It is easy to ask the question, but on reading this record we seek in vain for the evidence to support it.
Granted, for the sake of argument, that a person's fist or his boots, or both, might be used in such manner as to constitute means and force likely to produce death, we must nevertheless admit that neither fist nor boots nor both are deadly weapons per se. This indictment is evidently drawn under Section 787 of the Code of 1930, which defines assault and battery with intent to kill and murder. We note that this statute penalizes an assault and battery on another "with any deadly weapons or other means or force likely to produce death," but it does not stop here. There is added the real gravamen of the statute when it says further "with the intent to kill and murder, or to maim, ravish or rob such other person, or in the attempt to commit any murder, rape, manslaughter, burglary, larceny or other felony, or in resisting the execution of any legal process, or any officer or private person lawfully attempting to arrest him or any other person." The only intent required in this instruction is that it was done with the intention to resist the arrest of Archie Sullivan. The means and force used, whatever they are, must certainly be used in such way and manner that death is likely to ensue, and this must be done with intent to commit some named and designated felony.
The second assignment of error is that the court erred in not instructing the jury, as it was requested, that the defendant could not be found guilty of the crime charged in the indictment. The indictment charges the defendant with a felony. The proof offered by the state, and in fact as a whole, does not justify guilt of a felony. Under this indictment, it may be true that defendant could be found guilty of a misdemeanor in the event the evidence failed to prove the felony charge. This, we contend, is all the evidence does justify.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, and J.P. Coleman, of Ackerman, for appellee.
Deleting its inapplicable provisions, Section 787 of the Code of 1930 (Sec. 2011, Code of 1942) provides that "Every person who shall be convicted . . . of any assault or assault and battery upon another with any deadly weapons or other means or force likely to produce death . . . in resisting the execution of any legal process or any officer or private persons lawfully attempting to arrest him or any other person shall be imprisoned, etc." The indictment was drawn under this section and was not demurred to. The state by its instructions very carefully gave the jury the opportunity to find the defendant guilty of simple assault and battery. The jury after hearing all the proof found that the assault and battery was with means and force likely to produce death, hence the conviction of the felony. The trial court indicated its view of the evidence by sentencing the defendant to serve three years in the penitentiary, when it could have released him on a money fine of from $1 up to $1,000. The court, at the request of the defendant, repeatedly instructed the jury as to the defendant's theory of the case, including the element of intent to kill and murder. The statute itself specifically eliminates the requirement that a deadly weapon be used when it uses the language "other means and force likely to produce death." The effect of our Supreme Court decisions as to deadly weapons has been only to make the use of one prima facie evidence of intent. The state therefore respectfully submits that the evidence in this case, as developed in this record, justifies the verdict of the jury and the sentence of the court, and that there is no reversible error in this record.
Appellant was convicted of an assault and battery under 2 Miss. Code 1942, Section 2011, Code 1930, Section 787, the relevant provisions of which are as follows: ". . . any . . . assault and battery . . . with any . . . means or force likely to produce death . . . in resisting . . . any officer . . . lawfully attempting to arrest . . . any other person . . ." The assault was inflicted upon the town marshal of McCool while attempting to arrest one Sullivan.
The assignments of error include the refusal to give a peremptory charge, as to which we need say only that the testimony presented an issue for the jury. The other assignments may be discussed together. They involve the competency of the trial court to submit any issue other than that of simple assault.
The record shows that the defendant, together with some companions, was creating a disturbance in the Town of McCool. The chief offender was Sullivan, who, by his admission, was "really drunk." It was night-time and the offenders were continuing a drinking spree inaugurated earlier in the evening. As the disturbance became more vociferous, the town marshal admonished them to desist, whereupon he was vilely cursed and defied. Challenges were hurled, daring the officer to interfere. Whereupon, the marshal proceeded to the car, to which the offenders had repaired, and Sullivan was told that he was under arrest. Sullivan again defiantly cursed him and refused to submit. The officer was armed and carried his pistol in his hand. The defendant sought to dissuade the officer from effecting the arrest, promising to take Sullivan home. Shortly thereafter, one of the party snatched at the officer's pistol which was accidently discharged, the bullet striking his assailant in the leg.
It was at this point that the defendant struck the marshal with his fist, knocked him down and jumped on him. There is testimony that the defendant was shod with "cowboy boots," and that when the marshal was knocked down upon the paved street, defendant beat, kicked and "stomped" him in the head and body with his feet. The defendant was twenty-two years old and the marshal fifty-one. Their weight was approximately equal, the defendant having a slight advantage. According to the defendant's version, he "really let him have it and I really whipped him good and plenty and made a good job of it." When he learned during the brutal assault that one of the party had been shot, he "hit him a couple more licks."
The assault and battery being admitted and the verdict of the jury having resolved the issue of justification adversely to defendant, there survives only the alleged error in the instructions which authorize conviction for more than a simple assault. This point emerges from an instruction which authorizes conviction under the statute, upon a finding that the defendant assaulted the officer "with means or force likely to produce death." It is argued that a battery with hands and feet is not such means or force. Such contention would be cogent only in the event (1) such means were never likely to produce death; or (2) such means as here used were not so. Common knowledge, given point by convictions for murder in cases before this court, preclude assent to the first proposition. See Cooper v. State, 194 Miss. 592, 11 So.2d 207. Regarding the second alternative, it can be seen at once that there is involved a question of fact to be resolved according to the circumstances of each case. Conceivably, the means or force shown to have been used in a particular case could be adjudged at once inadequate both in a legal and a physical sense. We are not construing a statute dealing with a "deadly" or a "dangerous" weapon, nor with what is elsewhere termed "aggravated assault." The language here used is not technical and may not be accommodated to any legal formula. True, the means or force must at least be capable of producing death. This much was testified to by the attending physician. The verbiage of the statute appears not to have been selected hap-hazardly. It does not restrict the means to deadly weapons nor to an assault with intent to kill, nor does it require probability of death. The word "likely" borrows meaning from both possibility and probability and stands midway their respective connotations. So defined, in all cases save those bespeaking absurdity, the responsibility for adjudging likelihood remains with the jury, which may be left free to give due weight to the parties, the place, the means used, and the degree of force employed. Appellant was granted an instruction allowing the jury to construe the means and force here used as falling outside the language of the indictment, and to render an optional verdict of simple assault. This alternative could not have been rejected had the jury not, by the employment of their common knowledge in the light of all the relevant factors involved, adjudged the defendant guilty as charged.
Affirmed.