No. 22502 | Miss. | Sep 15, 1922
delivered the opinion of the court.
This is an appeal by Guy Lott who was convicted on a charge of assault and battery with intent to kill and murder, and sentenced to the penitentiary for seven years.
Briefly stated, the testimony offered by the state shows that Guy Lott was in company with three or four other-boys down in the public road a short distance from the home of John Berry, the party assaulted; that appellant got into a fight with one of the boys, whereupon John Berry, subsequently assaulted, left his house and went down to where the parties were fighting, apparently for the purpose of restoring peace. While in the effort to stop the fighting, the appellant, without provocation or justifiable cause, picked up a stick and struck John Berry on the back of the head with such great force and violence that he was knocked unconscious, in which condition he remained for some time.
The defense offered by the appellant was that John Berry came to where he and the other boys were playing, and after cursing one of the boys a fight ensued between Berry and this boy, and while John Berry had this boy down and was choking him, and apparently about to kill him, he (appellant) struck John Berry one lick on the head with a stick, in order to save the life of the boy 'being-choked on the ground. The testimony was in conflict, and the jury found appellant guilty.
“No. 2. The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant Guy Lott did willfully, unlawfully, feloniously and of his malice aforethought commit an assault and battery upon the person of John Berry with the stick introduced in evidence, then the jury should find the defendant guilty as charged in the indictment; and the court further instructs you that the use of a stick such as has been introduced in evidence is prima-facie evidence of an intent to kill and murder.”
“No 8. The court instructs the jury for the state that, even though you may believe that the defendant struck the said John Berry while said Berry was choking .Arthur Bowell, and that he did so for the purpose of defending said Arthur Bowell, you should find the defendant guilty as charged, if you should further believe the defendant struck said Berry with greater force than it was necessary to strike him with in defending said Arthur Bowell.”
That the above instructions are erroneous and harmful is readily apparent. Instruction No. 2 leaves out the essential element of intent to kill and murder, and also erroneously tells the jury “that the use of a stick such as has been introduced in evidence is prima-facie evidence of an intent to kill and murder.” The record does not disclose what kind of a stick was introduced in evidence, but whether or not a stick is a deadly weapon depends upon a number of things, and is a question of fact to be decided by the jury, in the absence of a statute making it a deadly weapon.
Instruction No. 3 should not have been granted the state because it fails to charge the necessary element of “intent to kill and murder.” It was certainly a question of fact for the jury to determine whether the blow was struck with intent to kill and murder the assaulted party.
Instruction No. 1 for the state, given in the lower court, but not complained of here, is equally as erroneous as the above instructions.
For the reasons given above, the judgment of the lower court will be reversed, and the case remanded for a new trial.
Reversed and remanded.