Gamblin v. State, 45 Miss. 658

Gamblin v. State

45 Miss. 658 | Miss. | 1871

Tabbell, J.:

The plaintiff in error was indicted at the September term of the Neshoba county circuit court, 1867, under art. 56, Code, 582, for the exhibition of deadly weapons. At a subsequent term, a motion to quash was submitted on the following grounds: “ 1st. Because the indictment does not charge that the pistol was loaded; 2d. It does not charge that the defendant was carrying the pistol charged to have been exhibited; 3d. It does not charge the defendant with exhibiting the weapon in a rude, angry and threatening manner. ’ ’ This motion being overruled, the accused pleaded not guilty, the district attorney having obtained leave to amend the indictment by inserting therein the word “ manner.” On the trial the court instructed the jury for the state as follows: “If the jury believe from the evidence that the defendant, E. D. Gamblin, exhibited the pistol in a rude, angry and threatening manner, in the presence of three or more persons, and not in his necessaiy self-defense, he is guilty as charged, and the jury should so find.”

The following instructions were given for the defendant: 1st. “ To constitute the offense charged in the indictment, the state must prove that the defendant exhibited the pistol in a rude, angry and threatening manner, and not in necessary self-defense, to the exclusion of every reasonable doubt, and unless the state has so proven, the jury should find the defendant not guilty.” 2d. “ The jury should look at all the testimony in the cause, and, if they believe that the defendant had reasonable cause to apprehend an assault on himself and drew his pistol to defend himself, they should find him not guilty.” 3d. “If the jury have a reasonable doubt as to the guilt of the defendant, arising out of the testimony, they should acquit.”

*663The following, asked for defendant, were refused : 1st. “If Gamblin had reason to believe that there was a conspiracy between Franklin and Salter to do him personal violence, he had a right to draw his pistol in self-defense, and if the jury believe from the evidence that Gamblin did draw his pistol after he knew that Franklin had drawn his, and when he was about to be assaulted by Salter, and that he drew it in self-defense, then the jury should find the defendant not guilty.” 2d. “If the jury are in doubt as to whether the pistol was drawn in self-defense or not, arising out of the testimony, they should acquit.”

The jury having returned a verdict of guilty, a new trial was asked, on the ground that the court erred in giving the instructions asked for the state, in refusing two of the instructions asked by the defendant, and because the verdict was contrary to law and evidence. Another trial was denied, and the defendant sued out a writ of error. In this court, the following are assigned as errors : 1st. The action of the court in overruling the motion to quash the indictment. 2d. In sustaining the application to amend. 3d. The indictment not having been amended in fact charges the defendant with no offense. 4th. In overruling the motion for a new trial.

There were several witnesses sworn, detailing the circumstances upon which the plaintiff in error was convicted. The occurrence took place in the grand jury room in the presence of several persons, some of whom were examined on the trial. The difficulty grew out of words reported to have been used by Gamblin with reference to another party, which, being denied by him, an altercation was the result, and pistols were drawn by Gamblin and another, but it is urged by counsel that the accused drew last and only in self-defense.

The charges given to the jury presented, with the most perfect impartiality, every phase of the case which could be considered by them under the statute for the violation of which the accused was on trial. In fact, those charges *664were almost exceptional for brevity, clearness, directness, and the absence of matter calculated to confuse or create a leaning for or against the defendant. The instructions asked, but refused, are mere repetitions of the law and the questions propounded in those given, while they are objectionable in construction, in a partial rehearsal of testimony, and in á mode of expression calculated to mislead. Those given are models of precision and impartiality, while those refused presented no new questions of law, and were open to the objections already stated.

Of the testimony, the jury are so far the exclusive judges, that, except in very clear cases of error, passion or prejudice, an appellate court will not interfere with their verdicts. Whether the verdict in a given case is strictly in accordance with the testimony, a court can determine only by substituting the judgment of the judges for that of the jury, which would be in violation of all the rules in such cases ; but the opinion of the former upon questions of fact, like that of the latter, would be subject to the imperfections of humanity, with the same liability to err in the one as the other. Within the rule prescribed to us, we see no occasion to undo the action of the jury in the case at bar, unless, in view of the evidence, their finding is clearly wrong. The law has wisely imposed a delicate and responsible duty upon jurors, and it is not for the court to rejudge their judgment. Kelly et al. v. Miller, 39 Miss. 17.

The only meritorious question in this case is, whether the court erred in refusing to quash the indictment, which charged that E. E. Gamblin, “having a certain deadly weapon, to Avit, a pistol, did then and there exhibit the same in a rude, angry or threatening, in the presence of three or more persons, and not in his necessary self-defense,” etc., omitting in the original the word “manner.” An examination of article 56, Code, 582, shows that, except the omission of the word “manner” after the word “threatening,” the indictment conforms precisely to the terms and language of the statute. 1 Bish. Or. Pr., §§ 375, 385; Kline *665v. The State, 44 Miss.; Riley v. The State, 43 ib.; Surratt v. The State, supra, p. 601.

In Unger v. The State, 42 Miss. 642, the indictment was found in 1866. During the trial, in 1867, the court permitted the presentment to be amended by changing D. W. Humphreys into D. G. Humphreys. It appeared from the testimony that the property charged to have been stolen (the indictment being for larceny) belonged to David George Humphreys. On error, this was held to be a fatal defect, which might have been taken advantage of before verdict. The defect, however, was held to be cured after verdict by the statute of jeofails. Art. 7, Code, 573.

Kline v. The State, 44 Miss. 317, was an indictment under art. 226, Code, 607, which enacts, that “no merchant, «- * * or other person, except apothecaries or druggists, shall keep open stores, or dispose of any wares * * * on Sunday * * * .’ ’ The exceptions of the statute were not negatived in the indictment, which was demurred to, but allowed to be amended at a term subsequent to its presentment, under art. 268, Code, 616. The court say: “After objection has been made by demurrer or motion to quash for any formal defect, the court may, if thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall forthwith proceed. If the objection taken to this indictment were merely ‘formal,’ the court had authority to order the amendment. But we have shown that the omission to negative the exception in the statute, in favor of ‘ druggists and apothecaries,’ was a fatal defect; and power is not conferred on the court by this article to make other than ‘formal’ amendments. Art. 268 refers to sundry defects, disclosed during the progress of the trial, which may be amended. This article applies to a variance between the allegations of the indictment and the testimony, and empowers the court to order amendments, so as to make the allegata correspond with the probata. The action of the circuit court cannot be brought within this provision.” In the case at bar the *666counsel for the plaintiff in error presses the argument on this branch of the case upon the idea that the defect in the indictment is matter of substance. A comparison shows it to be wholly unlike the defects in the cases of Unger and Kline, just referred to. The language of the indictment, following that of the statute (art. 56, Code, 582), leads to the certain conclusion that the absence of the word “ manner ” from the indictment was a clerical omission, and may be held in this case to be “ formal ” under art. 268, Code, 616, or an “irregularity or informality” within art. 7, Code, 573. There is but the one statute on the subject of the exhibition of deadly weapons, which enacts that “he who, having or carrying a deadly weapon, shall exhibit the same in a rude, angry or threatening manner,” not in necessary self-defense, shall be punished, upon conviction, as therein prescribed. The indictment of the plaintiff in error, as presented, charged that, having a pistol, he did then and there “exhibit the same in a rude, angry or threatening, in the presence of three or more persons,” etc. This comparison more clearly shows the omission of the word “manner” to have been accidental, than any argument can do. But, without this word, the offense was “substantially described,” which is all that is required. Art. 7, Code, 573; Kline v. The State, 44 Miss. In its absence, there could be no hesitation as .to the statute upon which the charge was based- There could be no doubt as to the offense imputed. The accused could not complain of uncertainty, want of notice, or inability to prepare for trial. And a conviction or acquittal on this indictment, as it stood before amendment, might have been pleaded in bar of another prosecution for the same offense. Suppose the indictment had presented the accused for exhibiting a deadly weapon, rudely, angrily and threateningly, there can be little doubt of its sufficiency within the adjudications. In this case it charges that the accused. ‘ ‘ having a certain deadly weapon, to wit, a pistol, did then *667and there exhibit the same in a rnde, angry or threatening, in the presence,” etc.

There is nothing in the argument of counsel that the indictment ought to have included the words “ or carrying,” or that it ought to have averred that the pistol was loaded. It is sufficient that the indictment conforms substantially to the statute. Kline v. The State, 44 Miss.; Riley v. The State, 43 ib.

The bill of exceptions given in the record states the amendment to have been in fact made, and, on the whole, we are of the opinion the court did not err in overruling the motion to quash and in granting leave to amend.

The judgment of the court below is affirmed.