King v. State

86 So. 339 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

The appellants, four in number, were indicted, tried, and convicted in the circuit court of Warren county, and each sentenced to pay a fine and be imprisoned in the county jail for a period of six months, from which judgment this appeal is prosecuted.

Omitting the formal parts, the indictment against these appellants is in the following words:

That they “did unlawfully conspire, combine, and confederate together to make an assault upon and smear tar upon the body of one Ella Brooks, and afterwards, in pursuance of the said unlawful conspiracy and combination, and then and there unlawfully assault and place tar on the person and body of one Ella Brooks, a human being,” etc.

Without entering into a--discussion of the testimony, it is sufficient to say that from it the jury was justified in believing that these people entered into a conspiracy in violation of section 1084, Code of 1906 (Hemingway’s Code, section 810). By its testimony the state not only proved that the appellants assaulted Ella Brooks, in her home, but further proved over the objection of appellants that they proceeded at once from the home of Ella Brooks *541and committed an assault upon another negro woman named Ethel Barrett. A negro man, who occupied a room in the same house with Ella Brooks, testified that this crowd, after committing the assault upon Ella Brooks, compelled him to show them the house of Ethel Barrett. He identified the defendants, ag being in the crowd who made him point out to them the house of Ethel Barrett. Ethel Barrett testified as. to the assault upon her, and identified the appellants as being in the crowd.

The state obtained instructions authorizing the jury to convict the appellants of a conspiracy, and also an instruction authorizing them to convict of an assault and battery. The indictment in this case is one for conspiracy and not for an assault and battery. Under section 1084 of the Code the conspiracy to commit a crime, or to accomplish any unlawful purpose, or lawful purpose by any unlawful means, is a complete and separate offense. Laura v. State, 26 Miss. 174; Isaacs v. State, 48 Miss. 234. Under this section it is not necessary to charge or prove the overt act; that is to say, that the conspiracy was in fact carried out, or attempted to be carried out. While the indictment 'in 'this ease only charges a conspiracy directed against Ella Brooks, the testimony for the state was to the.effect that the appellants intended “to attend to some negro women, and, if necessary, they were going to tar and feather them, and teach them a lesson.” The testimony as to the assault upon Ethel Barrett was evidence of the fact that the conspiracy was not only formed, but was carried out.

“Where the guilt of a party depends on the intent, purpose, or design with which an act is done, or on his guilty knowledge thereof, collateral facts in which he bore a principal part may be examined into, for the purpose of establishing such guilty intent, design, purpose, or knowledge. It is sufficient that such collateral facts have some connection with each other, as a part of the same plan, or as induced by the same motive, and it is immaterial that they show the commission of other crimes. The evidence *542in a conspiracy is wider than perhaps in any'other case. Taken by themselves, the acts of a conspiracy are rarely of an unequivocally guilty character, and they can only be properly estimated when 'connected with all the surrounding circumstances.” 12 ¡O. J. 637.

See, also, 5 R. C. L. pp. 1087-1088; Raines v. State, 81 , Miss. 489, 33 So. 19; Collier v. State, 106 Miss, 613, 64 So. 373.

The testimony in this case shows a conspiracy to commit an unlawful act upon at least two women, and the testimony shoving the commission of these assaults ivas therefore admissible as tending to show the conspiracy. What they actually did in this case is evidence of what they intended to do.

Whether or not these defendants, were convicted of an assault and battery, or a conspiracy, cannot be determined from this record. It ivas error to give the state an instruction authorizing the jury to find them guilty of an assault and battery, and for this error the judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.