63 Miss. 147 | Miss. | 1885
delivered the opinion of the court.
The indictment is not defective in that it fails to state what goods the defendant intended and attempted to steal from the person assaulted. When there has been no actual taking, it is impos
The averment that the name of the party assaulted was unknown to the grand jury excused the necessity of giving the name, so far at least as to sustain the indictment on a motion to quash.
The authorities are in conflict upon the question whether upon the trial it is necessary to show' that in fact the name of the party was unknown to the grand jury, and could not be learned upon reasonable inquiry. Bish. Cr. Pro., §§ 297, 303.
Conceding that such proof is required, we think the evidence sufficiently establishes these facts- in this case. The person assaulted was a stranger traveling upon a railroad train ; he was an Italian, and spoke no English; no one knew his name except his companions, none of whom understood our language. On the trial his name was disclosed by the interpreter, through whom his testimony was delivered. Under the circumstances, we think it sufficiently appears that the grand jury did not know and could not discover his name by the exercise of any care which they were required to take. The act of Akerman in putting his hand into the pocket of the Italian soon after he had assaulted him, and while he was being removed to the hotel, and his declaration that he was a pauper who was being carried by him to New Orleans was properly admitted to be given in evidence against the defendant. The evidence of a conspiracy between the defendant and Akerman was abundant, and what Akerman then did and said was in the furtherance and consummation of the common purpose—from which it does not appear that the defendant had withdrawn. There was an intimate connection of time and place between the assault made by the defendant and Akerman and that made by Akerman alone. It is impossible to say that there was, in fact, a separate attempt made by Akerman alone after the termination of the joint attempt, rather than a continuance by Akerman of the joint attack. The old man assaulted had been taken from the car of a running train by the two; Akerman had knocked him from the platform of the train, and had then turned to overcome the employee of the railroad, who had rung the bell to stop the train; the train had been
We cannot say that the court below erred in directing the. trial to proceed against the objection of the counsel for the defendant. It may be that by so doing the court occasioned suffering to the counsel, but we do not see that the defendant was prejudiced thereby. A careful examination of the record fails to disclose any point of objection or defense which was not availed of on the trial. The verdict of the jury was manifestly right, on the evidence, and no different result could rightfully follow if the case should be reversed. Counsel, though suffering from fatigue and indisposition, presented all the defenses which it seems to us could have been presented, and the evidence heard on the motion for a new trial discloses the fact that he made an able and eloquent argument before the jury of over an hour and a half in length. The physical pain endured by counsel in the defense cannot be considered as conferring any right upon the defendant to a new trial, unless it was of such character as to materially affect him in the discharge of his duty. That such was not the case on this trial is, we think, manifestly shown by the evidence.
The judgment is affirmed.