17 So. 2d 793 | Miss. | 1944
Appellant was convicted upon a charge of assault and battery with intent to kill and murder. The assault was committed by throwing a pair of pliers from a distance of ten feet, striking the prosecuting witness upon the upper lip. According to the record the assault was unprovoked and unjustified, and resulted in a painful, though not serious, injury.
We find no error in the admission of evidence. The state asked only one instruction, the giving of which is assigned as error. It is as follows: *330
"The court instructs the jury for the State that if they believe from the evidence in the case beyond reasonable doubt that the defendant Roy Daniels did feloniously, wilfully, and of his malice aforethought, strike, hit and wound Malcom Smith with a pair of wire pliers which you believe was a deadly weapon, at a time when he, the said Roy Daniels, was in no danger of losing his own life or of suffering great bodily harm at the hands of the said Milton Smith, in Neshoba County, Mississippi, about the time testified about, then he is guilty and you should so find and return the following verdict:
"`We, the jury, find the defendant guilty as charged.'"
The instruction is drawn up under 2 Miss. Code 1942, Sec. 2011. The relevant part of the statute is as follows: "Every person who shall be convicted of . . . any assault . . . and battery upon another with any deadly weapons . . . with intent to kill and murder." The defect in the instruction is evident. The indictment was for assault and battery with intent to kill and murder, yet the instruction authorized conviction thereunder upon proof of a simple assault. We do not reverse the case, since in our opinion a conviction of a higher offense is not warranted.
In Blaine v. State (Miss.),
Conviction of the lesser offense was clearly justified, however, and since it is implicit in the jury's verdict, the cause will not be reversed, but affirmed as a conviction for simple assault and battery, and remanded for appropriate sentence. Martin v. City of Laurel,
Affirmed and remanded for sentence.