28 Miss. 100 | Miss. | 1854
delivered the opinion of the court.
This was an indictment in the circuit court of Carroll county, under the 55th section of the statute of 1822, Hutch. Dig. 521, concerning slaves, free negroes, and mulattoes. The indict
The first and principal ground of error alleged is, that the indictment is essentially defective in not charging that the act of burning was committed maliciously, and, therefore, that no judgment can be pronounced upon or supported by it, and it must be quashed.
The offence charged is founded upon the statute above mentioned, which provides, that “if any slave shall be guilty of burning any dwelling-house, store, cotton-house, gin or outhouse, barn or stable, or shall be accessory thereto, every such slave shall, on conviction, suffer death.”
It is not denied on the part of the State, that malice is of the. essence of the crime of arson at common law, and that the same ingredient must enter into offences of house-burning created by statute. But it is insisted that, in the latter class of cases, it is sufficient to charge the offence in the indictment by the terms used in the statute.
While this is true as a general rule, we apprehend that it only applies where the description of the offence in the statute, taking into consideration its nature and the natural and legal import of the terms used in designating it, is such as to convey a certain, clear, and full idea of the offence intended to be created, and to embrace every ingredient necessary to constitute it, though the words employed be not the same as would be required in indictments for similar offences at common law. In such a case, no prejudice can be done to the accused by following the words of the statute. But if the words used in the statute do not, in view of the nature of the offence and the recognized principles of law, describe the offence so as to convey to the mind a full and clear idea of every thing necessary to constitute the crime, in such case, the full measure of the
In the present case, it is manifest that the words used in the statute do not show any thing which, as described, it can be supposed the legislature intended to punish. No term is employed conveying the idea of malice or criminal intent; and yet it is obvious that it was not intended to punish the mere burning of the houses enumerated, without it should be done with a malicious intent. It is plain, therefore, that the legislature have not adverted to the full measure of the offence, and that it was not intended to do so, but to provide generally for its punishment, leaving the proper description of it to be supplied, according to the settled rules of law when persons should be .charged under the statute. We are, therefore, of opinion, that ■the statute does not dispense with the averment of malice, and ■.that the indictment, without such averment, showed no offence in law.
The next question is, whether the plaintiff in error, after ■having pleaded in bar to the indictment, and made no question as to its sufficiency in the court below, can avail himself of a fatal defect in it in this court, and have it quashed. This point was decided in Kirk v. The State, 13 S. & M. 407, and, we think, correctly. We think it well settled, that every error in ■.substance, in charging the offence, which would have been fatal to the indictment on general demurrer or on motion in arrest of judgment, may be urged in error, and is ground for a reversal; for otherwise this court would, be called on to pronounce judgment against a party who is not charged with any offence in law.
The judgment is, therefore, reversed, the indictment quashed, and the prisoner ordered to be kept in custody for a new indictment.