Gipson v. State

2 Morr. St. Cas. 1345 | Miss. | 1872

Harris, J.:

The plaintiff in error was indicted in the circuit court of Warren county, for “an assault with intent to kill and murder.” The jury returned a verdict as follows: “ We, the jury, find the accused guilty of an attempt to commit manslaughter, but earnestly recommend him to the mercy of the court, believing that the higher penalties inflicted for the actual committal of such offenses, would be more severe than the circumstances attending the case would require.” This verdict was returned in writing; whereupon the court asked the jury, “ if they found the accused not guilty of an assault and battery, with intent to kill and murder, and found him guilty of an assault in the attempt to commit manslaughter? to which they responded, without being polled, in the affirmative. And thereupon the verdict of the jury was entered of record as follows: “We, the jury, find the defendant not guilty of an assault with intent to kill and murder, as charged, but guilty of an assault in the attempt to commit manslaughter on Jacob Webster.”

Afterwards, when the minutes were read on the succeeding day, it was moved by counsel for the plaintiff in error, to amend the same by inserting the verdict first offered in writing as above stated, in lieu of the one appearing on the record as stated in answer to the inquiry of the court. This motion was overruled by the court, and exceptions filed; and this ruling of the court is first assigned for error here.

We deem it only necessary to say, in reference to this assignment, that it presents no ground for reversal. The entry in the record is in accordance with the ascertained views of the jury; and it was competent for the court to make such inquiry as would enable it to comprehend the intention and will of the jury in reférence to their finding, when, in the opinion of the court, there was any doubt or uncertainty in the language employed by them.

The second and third grounds of error insisted on are, that the court erred in giving, refusing and modifying the instructions asked by the parties.

We have carefully examined the several instructions asked, given, refused and modified, and are satisfied that the plaintiff in error has no right to complain in this respect.

The remaining grounds of error are, the refusal of the motions for a new trial, and in arrest of judgment. These may be •considered together, as the main point relied on is the same.in each.

It is urged, under these two last assignments of error, that the defendant was convicted of an offense not embraced in the indictment, under an erroneous instruction of the court.

By the sixth instruction the jury were informed, that if they believed from the evidence, a given • state of facts stated -in the instruction, “they must find the defendant guilty as charged in - the indictment, or of shooting in the attempt to commit manslaughter, according -as they might believe the fact to be.” The jury found “the defendant not guilty of an assault with an attempt to' kill and murder, as charged, but guilty of an assault in the attempt to commit manslaughter on Jacob 'Webster.”

The question presented is, whether the verdict sufficiently •finds an offense known to our laws, and embraced in the indictment under consideration. It is insisted, that no such offense •as that described -by this verdict is embraced in the statute. This may be admitted, without in any manner affecting the 'validity of this verdict, or the judgment pronounced upon it.

Generally, where an accusation includes an offense of an inferior degree, the jury may discharge the defendant of the 'higher crime, and convict him of the less atrocious. Wharton’s Amer. Or: L., § 384. • ■

Of this the books give numerous instances. A common illustration is, that of an indictment for assault and battery, or án assault with intent to ■ kill, where the defendant may be convicted of assault and- battery, or of assault alone. Wharton’s Amer. Or. L., § 385, and numerous cases cited in- notes; and §§ 560, 565.

Even where the indictment on its face is for- a complete felony, while at common law, it has been doubted whether a conviction could be had for the constituent misdemeanor in some mf the states, yet, under our statute, Code, 622, § 305, express provision • is made, that even in cases of a complete felony, charged in the indictment, the defendant may be convicted of ■any inferior constituent misdemeanor or offense, necessarily included in the' offense charged in the indictment.

Tn the case before us, the plaintiff in error was charged in the indictment with an assault with intent to kill. The jury find him guilty of an “ assault,” and add words descriptive of no other offense known to the law, but explanatory of the character of the “assault,” to wit, “in the attempt to commit manslaughter on Jacob ’Webster.” That an 11 assault” is in-' eluded in every “ assault with intent to hill” cannot be denied; and that the jury may so find under an indictment for the greater offense, even in case of felony, we have shown. The only objection, therefore, to this finding, is the addition of the descriptive words. If these words had been descriptive of another offense known to our laws, either not included in the offense charged in this indictment, or if so included, subject to a different mode or degree of punishment' than the offense of an aggravated assault, we admit there would be more force in the argument here insisted on. But it is not perceived how the verdict of the jury can be vitiated by the unnecessary detail of the circumstances of the assault, where these descriptive circumstances after all but make the same offense in law. To say that the “ assault ” was committed in the attempt to commit manslaughter, gives character to the “ assault ” in point of aggravation, but does not make it any more or less than an “ assault ” in law, than if they had said the defendant committed an assault in attempting to go to church. The evidence, in the view we have taken of this case, fully justifies the verdict of the jury; and we think there was no error in overruling these motions for a new trial, and in arrest of judgment.

Let the judgment be affirmed.