87 So. 2d 80 | Miss. | 1956
The appellant, Willie Mae Garner, was convicted of assault and battery with intent to kill and murder one Dock Jefferson, and sentenced to serve a term of four years in the state penitentiary. On this appeal she assigns as error that (1) certain remarks of the district attorney in his closing argument to the jury amounted to a comment upon the failure of the defendant to testify
The remarks of the district attorney complained of were in the following language, to-wit: “This morning when the jury was being selected there was talk of it being an accident. We submit that there has been no testimony whatever about an accident.” Thereupon a motion was made for a mistrial to be entered, and the trial judge then stated into the record that when the jurors were being questioned to test their qualifications to serve in the case, one of the attorneys for the defendant asked, in substance, the following question: “Q. If the prosecuting witness himself, the man who was cut, Dock Jefferson, tells you that the cutting was an accident, would you acquit her?”
We are of the opinion that these remarks of the district attorney did not constitute a comment on the failure of the defendant to testify, and that what he said was a substantially correct statement in regard to what had transpired. In fact there was no testimony to show that the defendant accidentally cut anyone; she did the cutting wilfully, thinking that the victim was a different man, according to what she later told an officer. Dock Jefferson was questioned as a witness in regard to whether or not he believed that the defendant intended to cut him, and whether or not he didn’t tell one of the defendant’s attorneys that he didn’t believe she had any intention of cutting him, and his answer was in the affirmative. He was then further asked: “Q. You told me you didn’t believe she intended to cut you, didn’t you? A. Yes, sir, she told me that.” But when the testimony of the State is considered as a whole, it discloses that while Jefferson and the defendant were in the cafe of Lettie Thomas, and after he had ordered a plate lunch for himself, the defendant came up from behind him and cut him under the left jaw with a knife,
Referring again to the testimony of Dock Jefferson, after he had stated that the defendant had approached him from behind and cut him without any warning, he stated: “When I knowed anything she whacked me,” but that there had been no words between them and that they had been good friends.
The constable of the district testified that when he investigated the occurrence, he found that Dock Jefferson had a bad cut on one side of his neck, and that “it was lying wide open and doctors were in there fixing to sew it up”. He was then asked about a conversation that he had had with the defendant, Willie Mae Garner, and was asked to state “whether she had told you she cut this boy, Dock Jefferson,” and he replied, “She said she cut him”. The officer further testified that the defendant told him ‘ ‘ she bought the knife that morning with the intention of killing Richard Johnson * * *. Q. What explanation did she give you for cutting this man, Dock Jefferson? A. She said she thought she was cutting Richard Johnson.”
The foregoing is a summary of the material testimony in the case. Since there was no proof to show that the defendant bore any ill will toward Dock Jefferson, it would appear from all the facts and circumstances that the defendant intended to kill and murder the man whose throat she was cutting with the knife, but that it was a case of mistaken identity and that she wilfully, feloniously and with malice aforethought committed the
The indictment charges that the act was contrary to Section 2011, Code of 1942, the pertinent part of which reads as follows: “Every person who shall be convicted of * * * assault and battery upon another with any deadly weapons or other moans or force likely to produce death, with intent to kill and murder * * * such other person; or in the attempt to commit any murder * * *, or other felony; * * * shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than one year, or by both.” (Italics ours).
Among other cases relied on by the appellant is that of Morgan v. State, 13 S. & M. 242, wherein Morgan was charged with shooting James Foster with the intent then and there to kill and murder James Foster. The proof showed that the defendant either shot into a crowd and hit Foster or that he shot at one Lofton and missed him and hit James Foster. In that case the Court said: “An essential ingredient of the offense created by the section of the statute above quoted, and charged in the indictment, is the specific intent of killing the person shot at. * * In the instant case, it seems clear that the appellant intended to kill the person at the table whom she approached from behind and cut with the knife and that she merely mistook him for Richard Johnson, the proof showing that the two men were about the same color and size; that she intended to kill and murder the person at the table by cutting his throat in approaching him from behind; and that that person proved to be Dock Jefferson instead of Richard Johnson.
Without prolonging this opinion by a discussion of the numerous other similar cases relied on by the appellant, we think it sufficient to say that this case is distinguishable from them in that the defendant did not assault Richard Johnson in an effort to kill him by cutting his throat and while doing so unintentionally cut Dock Jefferson. The said Richard Johnson was not in the cafe, so far as the testimony shows, at the time the defendant made the felonious assault on Dock Jefferson. In the instant case, she inflicted the knife wound on the body of the person whom she was then assaulting, even though she committed the unlawful act while think
In the case of McGehee v. State, 62 Miss. 772, the defendant became angry at one Morris at a public gathering, and when the latter started home the defendant followed him. Instead of overtaking Morris he overtook one Thompson who was going in the same direction as Morris, and supposing Thompson to be Morris the defendant cut and dangerously wounded him. Since Thompson was the only person within reach of the defendant at the time he committed the offense with which he was charged, and he intended to assault the person whom he did actually cut, the court held that the defendant was properly convicted if he intended to kill the man against whom he was weilding the knife. In that case, as in the case at bar, the defendant was merely mistaken as to the identity of the person whom he was assaulting. Therein the Court said: “Thompson was the only person in reach of appellant at the time he committed the offense with which he is charged. He intended to assault that person with a weapon which the jury found to be a deadly weapon. His blows did not miss the object at which they were aimed. He may not have intended to kill Thompson, but he was properly convicted if he intended to kill the man at whom the knife was directed. The evil and specific intent to strike the form before him at the time is manifest, and that form proved to be Thompson. That there was a mistake as to the identity of the person intended to be injured constitutes no defense. If appellant did to Thompson what he intended to do to Morris, he is as guilty under the statute as if no mistake had been made. 2 Whart. Cr. Law, Sec. 1279; 1 Russ, on Crimes, 1001, 1002 (ninth ed.); Regina v. Smith, 33 Eng. Law & Eq. 567; Regina v. Lynch, 1 Cox C. C. 361. And this is not in conflict with the settled doctrine in this State that on a charge under the statute of assault with a deadly weapon, with intent to kill and
We are of the opinion that this case was properly submitted to the jury against the defendant for wilfully, unlawfully, feloniously and with malice aforethought cut with the intent to kill and murder the person actually assaulted, and that the proof was ample to support the verdict.
The conviction and sentence of the appellant must, therefore, be affirmed.
Affirmed.