Opinion
No. 28210.
March 3, 1930.
1. ASSAULT AND BATTERY. Indictment held sufficiently to charge assault, as against demurrer.
An indictment which charged "upon their oaths present that ____ in said County, on the 1st day of July, A.D. 1929, did willfully and unlawfully upon the body of Q.D.V. make an assault with his hands and did then and there with his said hands did then and there unlawfully grab, seize, choke and shove the said Q.D.V. contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Mississippi," sufficiently charge an assault.
2. ASSAULT AND BATTERY. Evidence held sufficient to sustain conviction of assault on justice of peace.
On a charge of assault, where it appears from the evidence that the person assaulted was a justice of the peace, and where the term of court in which a named person was tried for a specified offense and a conviction was had by a jury, a third person made a statement to the justice of the peace indicating his disapproval of the conviction, and the justice threatened to assault the third person, and thereupon the defendant walked up and grabbed the justice of the peace in the collar and said, "No you won't, I will take your case; you won't jump on any man in town," such evidence is sufficient to sustain a conviction of assault.
APPEAL from circuit court of Clay county. HON. J.I. STURDIVANT, Judge.
B.H. Loving, of West Point, for appellant.
The demurrer should have been sustained.
Blankenship v. State, 95 So. 81; 5 C.J. 712.
Except in the cases of an assault — committed by a person who was at the time drunk, or engaged in the intentional performance of an illegal or mischievous act, the intent to injure or frighten is an essential element of the offense.
5 C.J. 721, sec. 183; 5 C.J. 771, sec. 285; 2 R.C.L. p. 529.
In the case of the State v. Rodgers, 29 So. 13, this court held insufficient an affidavit, which was as follows, omitting the formal parts, to-wit: that Steve Rodgers did make an assault on affiant, by cursing and threatening him with bodily harm and pursuing said affiant.
The evidence is insufficient to sustain a conviction. All the elements of the crime charged against appellant must clearly appear beyond a reasonable doubt and to a moral certainty, from the evidence, before the same is sufficient to sustain this conviction.
One has the legal right to protect a third person from an unjustifiable assault and the commission of a crime against the person of such third person.
2 R.C.L. 554, sec. 34; 5 C.J. 571; State v. Totman, 80 Mo. App. 125.
Forrest B. Jackson, Assistant Attorney-General, for appellee.
By section 1354, Hemingway's Code 1927, all crimes known at common law are made crimes against the state of Mississippi. An assault was a crime under the common law.
2 R.C.L., pp. 525 and 526.
To constitute a simple assault, it was not necessary to specifically charge such criminal intent, especially when the indictment set out the facts and circumstances constituting the unlawful assault.
Hussey v. State, 144 Miss. 380, 109 So. 871; Crawford v. State 146 Miss. 540, 112 So. 681.
The testimony was sufficient to support the verdict of the jury, especially in view of the instructions given for the defendant and the state.
Blankenship v. State, 130 Miss. 725, 95 So. 81; Hussey v. State, 144 Miss. 380, 109 So. 871; Malone v. State, 77 Miss. 812, 26 So. 968; Martin v. City of Laurel, 106 Miss. 357, 63 So. 670.
George Hill was indicted for an assault upon the body of Q.D. Vail. The pertinent part of the indictment reads: "Upon their oaths present that George Hill in said county, on the 1st day of July, A.D. 1929, did willfully and unlawfully upon the body of Q.D. Vail make an assault with his hands and did then and there with his said hands did then and there unlawfully grab, seize, choke and shove the said Q.D. Vail contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi."
There was a demurrer to this indictment based upon the grounds that it charged no crime known to the law; and that it did not inform the defendant of the nature and cause of the accusation against him; and that the alleged assault as set out in the indictment is a mere conclusion of the pleader and not supported by specific allegations therein as to the facts; and that it is not alleged that there was an intention on the part of the defendant to do bodily harm or injury to Q.D. Vail; and that it is not alleged that defendant laid hands on and grabbed and choked Q.D. Vail with intent to do the said Q.D. Vail bodily harm or injury, and such intent is the gist of the offense.
It appears from the proof that Vail was a justice of the peace, and had on the day of the alleged assault held a term of court in which one Eugene Cousins was tried for possession of liquor. The defendant in the case had called for a jury, and the jury had found him guilty. After this conviction, one Ben Bennett walked up to the justice and said. "Captain, it looks like you convict them from jugs and bottles." The justice of the peace said, "You don't think a jury of six good and lawful men would return the wrong verdict, do you?" He said. "Yes, I do." The justice then threatened Bennett with violence, whereupon Hill the appellant in this case, walked up and grabbed the justice of the peace in the collar and said, "No you won't. I will take your case; you won't jump on any man in town."
This constitutes the gist of the appeal here; it being insisted that the indictment was invalid and also that the evidence above stated did not constitute an assault. We think the indictment was proper, and that the evidence was sufficient to sustain it. See Hussey v. State, 144 Miss. 380, 109 So. 871; Stroud v. State, 131 Miss. 875, 95 So. 738; Crawford v. State, 146 Miss. 540, 112 So. 681.
Judgment of the court below will therefore be affirmed.
Affirmed.