Opinion
No. 33648.
October 30, 1939.
HOMICIDE.
In prosecution for assault and battery with intent to kill and murder, there was not a fatal variance between indictment which charged shooting "John Horne" and the proof, even though prosecuting witness stated on trial that his name was "John Horne, Jr.," where next witness testified that he was a brother to "John Horne who just testified," thereafter throughout trial prosecuting witness was referred to as "John" or "John Horne," and prosecuting witness, who testified that defendant shot some of his fingers off, had fingers missing.
APPEAL from the circuit court of Rankin county; HON. PERCY M. LEE, Judge.
H.H. Bullock, of Brandon, for appellant.
The indictment leaves it to a speculation, whom the defendant intended to kill and murder. The indictment does not state that the defendant intended to kill and murder the said John Horne, Jr., a human being, or another person, as shown by the testimony. "Where intent is an element of the offense, it must be alleged substantially in the words of the statute," 5 C.J. 771, Sec. 286. The indictment does not follow the language of the statute in and provided for in cause of assault and battery and with intent to kill and murder.
Jones v. State, 11 S. M. 315; Morgan v. State, 13 S. M. 245; Morman v. State, 24 Miss. 57; Barcus v. State, 49 Miss. 17.
The appellant was charged in the indictment, throughout, with assaulting one "John Horne." The evidence shows only that he assaulted one "John Horne, Jr.," with nothing to show that "John Horne" and "John Horne, Jr.," were one and the same man. The fact is there is a "John Horne" and there is also a "John Horne, Jr.," two living persons; there was no amendment made to the indictment.
McBeth v. State, 50 Miss. 81; Miller v. State, 53 Miss. 403; Cook v. State, 72 Miss. 517; Clark v. State, 100 Miss. 751; Davis v. State, 150 Miss. 797; Thomas v. State, 167 Miss. 504; Cooksey v. State, 175 Miss. 82.
The indictment charges that the crime was committed upon John Horne; the proof was that it was committed upon John Horne, Jr.; and state's instruction charges that it was made upon John Horne, Jr., "as charged in the indictment;" wherefore, the instruction charged an offense against two persons. The jury's verdict was, "We, the jury, find the defendant guilty as charged;" the court thereupon sentenced the appellant to serve a term of five years for a crime as charged in the indictment, committed on John Horne, who is a different person than John Horne, Jr.; and who was not harmed in this difficulty.
Barcus v. State, 49 Miss. 17; Gentry v. State, 92 Miss. 141.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Appellant argues that the indictment was insufficient because the "intent" was insufficiently alleged. There was no demurrer interposed and no objection to the indictment was ever shown until after the verdict and for this reason we think appellant is in no position to claim that the indictment was technically incorrect and that it does not follow the exact wording of the statute. Without arguing the question, we say that the indictment substantially charged an assault and battery with intent to kill and murder John Horne. On the other hand, we think the indictment, as written, was proper.
State v. May, 147 Miss. 79, 112 So. 866; Wood v. State, 64 Miss. 761, 2 So. 247; Word v. State (Miss.), 178 So. 821; Bailey v. State, 146 Miss. 588, 111 So. 586.
The indictment charged that the assault was committed upon John Horne. At the time John Horne testified, he said his name was John Horne, Jr. Thereafter, throughout the record, both the witness and the attorney referred to the assaulted person as "John Horne." This alleged variance is called to the attention of this court for the first time. Where there is a variance between the indictment and proof and this matter is not raised in the trial court, it cannot be raised in this court for the first time.
Hale v. State (Miss.), 176 So. 603; Hoskins v. State, 106 Miss. 368, 63 So. 671; Woulard v. State, 137 Miss. 808, 102 So. 781.
If there were such a variance, the defect in the indictment was an amendable one and if the defendant did not call the attention of the trial court to this defect in the indictment, the defect was cured by the verdict.
Tillman v. State, 158 Miss. 802, 131 So. 265.
It appears from the evidence that John Horne and John Horne, Jr. were one and the same person, although counsel for appellant goes out of the record long enough to inform the court that, as a matter of fact, there were two John Hornes, a senior and a junior. But, in view of the testimony that the witness was known by both names, the giving of the instruction with the name "John Horne, Jr." (one of the names by which appellant was known) could not have hurt the appellant.
Woulard v. State, 137 Miss. 808, 102 So. 781.
The appellant, Archie Foreman, owed John Horne, who resided down on Hog Creek in Rankin county, three bushels of corn. On the occasion herein mentioned Foreman sent word to Horne to come down to his field fence and get the corn. When Horne arrived at the appointed place he says that Foreman arose from behind a cord of wood, lifted his shotgun and fired at him as he threw up his hands, "Just like a man would if the law comes out on him;" and that Foreman "shot some of my fingers off and the top of my hat out." The appellant, Foreman, however, testified that it was all an accident. The jury in our opinion reasonably concluded from the evidence that the victim's version of what occurred was correct, and convicted the appellant of assault and battery with intent to kill and murder.
Upon this appeal the appellant complains for the first time of a variance between the indictment and the proof. He was indicted for shooting "John Horne." Upon the trial Horne was asked to state his name and in response he said, "John Horne, Jr." However, we find that the next witness to take the stand was asked, "What kin are you to John Horne who just testified," and he answered, "a brother." And thereafter, throughout the trial, the witness Horne was referred to either by the name of John or John Horne. This, together, with the mute evidence of the missing fingers, we think sufficiently identified the witness as the same John Horne named in the indictment as having been shot. The witness Horne at least seemed to have had first-hand information as to what had happened to John Horne down at the field fence at the hands of the "negro in the wood-pile."
It is next urged that the indictment was legally insufficient. No demurrer was interposed, and no other objection was made thereto until after verdict rendered. But be that as it may, we are unable to agree with the appellant's contention in that behalf.
Affirmed.