Summary
holding that the defendant's exhibition of a pistol, accompanied by his "expression of vexed discontent" after losing money in a craps game, was insufficient to sustain a conviction of assault with the intent to murder the victim even though the defendant discharged the pistol during a scuffle and killed a third party
Summary of this case from Johnson v. StateOpinion
No. 36523.
November 10, 1947.
1. HOMICIDE.
The gist of the offense of assault with intent to commit murder is an intent to murder.
2. HOMICIDE.
Intent to murder may be shown by deliberate use of a gun, whether it results in a battery or fails of its aim.
3. ASSAULT AND BATTERY. Homicide.
Brandishing pistol accompanied by expression of vexed discontent after losing money in crap game warranted conviction of simple assault but would not sustain conviction of assault with intent to murder.
4. CRIMINAL LAW.
Where conviction of assault with intent to murder was not supported by the evidence which, however, warranted conviction of simple assault, cause would be remanded for imposition of sentence for simple assault.
APPEAL from the circuit court of Simpson county. HON. HOMER CURRIE, J.
Edwards Edwards, of Mendenhall, for appellant.
Under the testimony as shown by the record all that the appellant could have been convicted of was a misdemeanor.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Under the facts in this record it was for the jury to say whether or not the appellant intended to shoot J.C. Nicholas or whether or not he intended to kill or murder him. Generally speaking, an assault with a deadly weapon justifies the jury in believing that the intent was to kill. Although the appellant denied the intent to kill, his evidence could be discredited by the jury and the jury need not believe that he was merely "wolfing," as he expressed it, when he drew the pistol and that the cause of the pistol firing was it being knocked up by Nicholas. The jury was not compelled to believe any part of the defendant's testimony because it is improbable and disputed by facts from which the jury could draw an inference of guilt and an intent to kill. The jury has the duty to consider the evidence as a whole and to draw proper inferences therefrom.
Carter v. State, 140 Miss. 265, 105 So. 514.
The credibility of the witnesses and the weight of the testimony are for the consideration of the jury and the jury may draw from the facts proper inferences or conclusions whether the evidence is direct and circumstantial.
Sauer v. State, 166 Miss. 507, 144 So. 225; Ransom v. State, 149 Miss. 262, 115 So. 208; Pickett v. State, 164 Miss. 142, 143 So. 692; Hardy v. State, 143 Miss. 352, 108 So. 727; Mississippi Digest, "Criminal Law," Key Nos. 741-757.
Appellant was convicted of an assault with intent to commit murder upon one Nicholas. The indictment alleges that the defendant "did then and there unlawfully, wilfully, and feloniously and of his malice aforethought shoot at the said J.C. Nicholas" with the said intent.
The scene of this assault was a crap game, and the drama followed an established pattern. Defendant, en route to the gambling rendezvous, picked up one Will Wilbur, who, for reasons best known to himself, placed in defendant's care and custody an automatic pistol. This bit of traditional stage property was retained by defendant undoubtedly against the probability of need to adjust the untoward manifestations of an adverse fate by a display of persuasive force.
The occasion, thus insured against, soon arose and took the form of a sudden loss of $4. Defendant at once drew the weapon and Nicholas, alert to the maneuver, knocked his hand upward whereupon the weapon was discharged. The effect of this discharge was chiefly the sudden and precipitous dispersal of most of the witnesses, who, omitting to stand upon the order or direction of their departure, were unable either from overpowering emotion or the early attainment of superior distance, to verify the fact of a second shot. This latter volley ensued from a scuffle between Nicholas and the defendant over the use or possession of the weapon whose charge struck and killed its owner, Wilbur.
All the witnesses professed mutual friendship and a complete absence of ill-feeling between any of the group. The defendant disavowed a purpose to cause harm to any of the participants. He characterized his hostile gesture as merely "wolfing," a procedure later clarified as purely idiomatic and indicating a proper occasion for a threatening display of protest against some minor lapse from the accepted rules of play. Allegedly it was resorted to as part of the strategy of the loser in this precarious sport, which, the record indicates often cultivates a high degree of sensitivity to even slight adversity.
The gun was not in fact pointed at Nicholas, and it is not beyond reasonable doubt that its use was deliberate. See Bridges v. State, 197 Miss. 527, 19 So.2d 738. The gist of the offense charged is an intent to murder. Toler v. State, 143 Miss. 96, 108 So. 443. While a deliberate use, resulting in a battery or failing of its aim, could well furnish evidence of a murderous intent, it is not here sufficiently shown that there was a homicidal use.
Its exhibition, however, accompanied by an expression of vexed discontent was a sufficient gesture to support a charge of simple assault. Nicholas was justified under the circumstances in interpreting defendant's artifice as presaging personal harm. In this situation, while the proof is insufficient to support a charge of an actual murderous intent, these considerations warranted a finding that the defendant, by brandishing his weapon, committed an act whose ambiguity, if open to defendant to denominate as mere bluff, was likewise open to the victim to interpret as vengeful. Blankenship v. State, 130 Miss. 725, 95 So. 81. Such a finding is implicit in the verdict of the jury.
The unfortunate and accidental killing of Wilbur was most probably left upon the scales whereon reasonable doubts were being weighed and was an unconscious stimulus toward a conclusion that such doubts should be resolved against the defendant.
The cause, therefore, will be affirmed, but remanded solely for imposition of sentence commensurate with the degree of simple assault. Griffin v. State, 196 Miss. 528, 18 So.2d 437.
Affirmed and remanded.