Opinion
No. 32137.
April 6, 1936. Suggestion of Error Overruled, May 4, 1936.
1. INDICTMENT AND INFORMATION.
Where deceased was killed by shot fired by third party after defendant had fractured deceased's skull and there was no evidence that fracture would have caused death, defendant could be prosecuted for assault with intent to kill (Code 1930, section 794).
2. INDICTMENT AND INFORMATION.
Statute providing that no person shall be convicted of assault with intent to commit crime if crime is perpetrated by such person at time of assault is inapplicable where it is doubtful that offense attempted was completed by accused, and state may in such case elect to prosecute for the attempt (Code 1930, section 794).
APPEAL from circuit court of Yalobusha county. HON. JOHN M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
Taken at its plain intent, the state proceeded to make out a case of murder against Bill Holley under an indictment charging an assault and battery with intent to kill with an iron wedge. This is not permissible under the statute and we made a motion to have him declared not guilty under this indictment and proceeded to submit a peremptory instruction to the court, and gave the jury a number of instructions which amounted to peremptory instructions to acquit this man, all of which they ignored, and convicted him of assault and battery with intent to kill. The fault was not with the jury but with the judge; he should have granted the peremptory instruction.
Section 794, Code of 1930; Davis v. State, 89 Miss. 21, 42 So. 542.
This is an effort to convict the appellant of a minor felony for the blow. This could be proper and lawful only in case of two things, and one is to totally ignore all the testimony of all the witnesses tending to show the clear participation of appellant in the killing, going and getting the gun, taking the gun back, etc. Second, there would had to have been proof in the case that the blow delivered by the appellant would not have killed the deceased. There was no effort or pretense of making such proof, and this conviction stands right squarely in the face of Section 794, and the case of Davis v. State, 89 Miss. 21, 42 So. 542.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Appellant, according to the testimony, was threatening to kill Scurlock and did assault him with an iron bar, cracking his skull — a wound not necessarily fatal. While Scurlock was attempting to get up, Swearengen shot and killed him.
The law is that if the wound is not in its nature mortal, and death results solely from an entirely independent cause, the person inflicting the wound cannot be held responsible for the death.
Quinn v. State, 106 Miss. 844, 64 So. 1038.
Some time after nightfall, the deceased went to the house of two women, where apparently he was not welcomed. He soon left, and while he was gone appellant, who was in the house, stated that he, appellant, was going to kill the deceased if he returned. Later the deceased returned, and while standing on the porch, appellant came from within the house and struck the deceased a heavy blow on the head with an iron fire poker. The force of the blow was sufficient to knock the deceased from the porch and to fracture his skull. Within a short time, and while the deceased was attempting to rise from the ground, another negro appeared on the scene armed with a shotgun, and although appellant requested the other negro not to shoot the deceased, the negro who had the shotgun nevertheless approached within close range and shot the deceased, killing him instantly. The deceased was making no hostile demonstration either when struck with the poker or when shot.
Appellant was indicted, tried, and convicted of an assault and battery with intent to kill and murder. He has appealed, and assigns as the ground for reversal that his conviction was contrary to the provisions of section 794, Code 1930, which reads as follows: "A person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt."
If upon the occasion in question the deceased had received no other injury than the blow on the head delivered by the appellant and death had resulted therefrom, then, under the statute, appellant could not have been prosecuted for an attempt, because the facts would have shown beyond doubt that appellant would have been guilty of murder; guilty of a complete offense rather than of an attempt to commit the offense. Davis v. State, 89 Miss. 21, 42 So. 542. But the case now in hand presents a situation wherein it is doubtful whether the state could prove that the blow delivered by appellant would have resulted in death. There is no competent evidence in this record that the fracture of the skull would have proved fatal. Apparently no physician made any examination of the wounds, and there is no such detailed description of the fracture as to demonstrate to a jury that it was sufficient to produce death, even if without expert evidence such proof could be made. The quoted statute does not cover a case wherein it is doubtful that the offense attempted was actually completed by the accused, and in such case the state may elect to prosecute for the attempt.
Affirmed.