Opinion
No. 41025.
December 15, 1958.
1. Homicide — statutes — assault and battery with intent — deadly weapon — a shotgun which was jammed and could not be fired in that condition was not.
A shotgun which was jammed and could not be fired in that condition was not a "deadly weapon" within meaning of statute prescribing assault and battery upon another with any deadly weapon with intent to kill and murder. Sec. 2011, Code 1942.
2. Homicide — assault and battery with intent — evidence — conviction not sustained by the evidence — affirmed as a conviction for simple assault.
Conviction for assault with intent to kill was not sustained by the evidence; but there being evidence ample to sustain conviction of simple assault, verdict would be affirmed as a conviction for simple assault and case remanded for proper sentence of defendant. Sec. 2011, Code 1942.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Alcorn County; RAYWOND T. JARVIS, J.
Cunningham Cunningham, Booneville, for appellant.
I. The indictment was fatally defective, and the demurrer should have been sustained. State v. Glennen, 93 Miss. 836, 47 So. 550; State v. Clark, 145 Miss. 207, 110 So. 447; Sec. 2437, Code 1942; Vol. IV, Wharton's Criminal Law Procedure, Anderson, Sec. 1776.
II. The verdict of the jury was against the weight of the evidence and contrary to the law. Daniels v. State, 196 Miss. 328, 17 So.2d 793; Edgar v. State, 202 Miss. 505, 32 So.2d 441; Edwards v. State, 178 Miss. 696, 174 So. 57; Griffin v. State, 196 Miss. 528, 18 So.2d 437; Lott v. State, 83 Miss. 609, 36 So. 11; Vaughn v. State, 3 Sm. M. 553; Vol. I, Wharton's Criminal Law Procedure, Anderson, Sec. 44.
III. The State's instructions constitute reversible error for the reasons they did not submit to jury the question of use of a deadly weapon, the question of defendant's intoxication in mitigation, and they eliminated the necessity of determining intent to commit murder. Daniels v. State, supra; Edwards v. State, supra; Herring v. State, 134 Miss. 505, 99 So. 270; Lott v. State, 130 Miss. 119, 93 So. 481.
IV. It was error to allow Policeman Rogers to testify as to previous threats by the defendant against him, and highly prejudicial to defendant's rights. Walker v. State, 140 Miss. 238, 105 So. 497; 4 Am. Jur., Assault Battery, Secs. 108, 153; 6 C.J.S., Assault Battery, Sec. 116(d); Vol. I, Wharton's Criminal Evidence (12th ed.), Anderson, Sec. 198.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The indictment was not defective and the demurrer thereto was properly overruled. Moffett v. State, 223 Miss. 276, 78 So.2d 142; Washington v. State, 222 Miss. 782, 77 So.2d 260; Thompson v. State, 54 Miss. 740; Secs. 2011, 2437, 2451, Code 1942.
II. The verdict of the jury was not against the weight of the evidence and contrary to the law. Jeff v. State, 37 Miss. 321, 39 Miss. 593; Saffold v. State, 76 Miss. 258, 24 So. 314; State v. Simms, 80 Miss. 381, 31 So. 907; Batteast v. State, 215 Miss. 337, 60 So.2d 814.
III. The State's instructions do not constitute reversible error. Rowland v. State, 182 Miss. 886, 183 So. 527.
IV. It was not error to allow Policeman Rogers to testify as to the previous threats by the defendant against him. Boatwright v. State, 120 Miss. 883, 83 So. 311; Long v. State (Tenn.), 304 S.W.2d 492; Brooks v. State, 192 Miss. 121, 4 So.2d 886; Underhill's Criminal Evidence (5th ed.), Sec. 650.
Billy Joe Woodall was convicted of an assault with intent to kill and murder one Harold Hinton, and sentenced to five years in the penitentiary, three years of the sentence being suspended, from which judgment he appeals.
The record discloses the following facts: The appellant lived with his father in the City of Corinth. On the evening of November 5, 1957, the police officers received a call to come to the C.R. Woodall home for the appellant; the prosecuting witness, Harold Hinton and Don Watkins went to the home and parked their car in the street; at that time the appellant came out with a 410-guage shotgun in his hands, and, in the officers' words, "flopped that lever action over and pushed it." The officers remained in the car and the appellant approached the car pointing the gun at the officers and stating he was going to kill both of them. At this time, Hinton opened the door of the car and attempted to grab the gun but missed it; the appellant's father then grabbed the appellant, hitting him several times in the face, and the gun dropped to the ground. The officers arrested the appellant and carried him to jail, leaving the gun with the appellant's father. Later that evening, they returned and picked up the gun. Coleman Rogers, policeman, upon examining the gun, found that a live shell was in the gun, however, the shell was only partially in the firing chamber, lacking one-fourth of an inch from going in the barrel so that the breech lock would close and the gun could be fired. All of the officers testified that the gun was jammed and would not shoot in this condition. One of the officers also testified that three shells were found in the appellant's pocket. The gun was before the jury, however, none of the shells could be found. The testimony of the officers was that the appellant was drinking and "mean drunk", but he knew what he was doing.
There are a number of assignments argued, however, in view of our conclusion, the only one we consider is whether the evidence was sufficient to sustain the verdict of assault with intent to kill and murder. Section 2011, Volume 2A, Mississippi Code of 1942, provides, in part, as follows: "Every person who shall be convicted of shooting at another, or of attempting to discharge any firearms or airguns at another, wilfully; or of any assault or assault and battery upon another with any deadly weapons or other means or force likely to produce death, with intent to kill and murder. . . ."
The evidence on the part of the State shows that the gun was not fired and that it could not be fired in the condition it was in; that there was no battery and no attempt to use the gun as a club. In the case of Vaughn v. State, 11 Miss. 553, the Court held: "When an indictment charges a shooting with a felonious intent, it must be proved that the gun was so loaded as to be capable of doing the mischief alleged to be intended."
In Daniels v. State, 196 Miss. 328, 17 So.2d 793, we held: "Both the nature of the means used and the quality of the purpose are essential elements of the crime charged. The weapon must be 'deadly', or the means likely to produce death, and the intent must be murder."
(Hn 1) In the instant case, the shotgun was not fired and according to all of the evidence was incapable of being fired, and was not a deadly weapon within the meaning of Section 2011, supra. (Hn 2) We are of the opinion that the evidence is insufficient to sustain the crime of assault with intent to kill and murder, however, the evidence was ample to sustain a conviction of simple assault. It follows that the verdict will be affirmed as a conviction for simple assault, and remanded for proper sentence. Griffen v. State, 196 Miss. 528, 18 So.2d 437.
Affirmed and remanded.
Roberds, P.J., and Lee, Kyle and Gillespie, JJ., concur.