Miller v. State

95 So. 83 | Miss. | 1922

Sykes, P. J.,

delivered the opinion of the court.

The appellant, Otho Miller, with others, was indicted, tried, and convicted of an attempt to make intoxicating liquors. From .a judgment of the court sentencing him to serve one year in the state penitentiary, this appeal is prosecuted.

Omitting the formal parts of the indictment, it is as follows:

“That Walter Stapleton, Grover Miller, and Otho Miller, on the - day of April, 1921, in Covington county aforesaid, did then and there unlawfully and feloniously attempt, design, and endeavor to commit a certain offense, to-wit, to unlawfully and feloniously make and distill intoxicating liquors, and did then and there do and perform certain overt acts towards the commission of said offense, but was prevented from committing said offense.”

A demurrer was overruled to this indictment. It is the contention of the appellant that the facts which constitute the overt act must be set out in the indictment, in order that the accused may be informed of the nature and cause of the accusation against him, and further, in order that the court may be able to determine as a matter of law if the facts stated constituté an overt act; that the mere stating in the indictment that these appellants performed certain overt acts toward the commission of the offense is a mere conclusion of law; consequently that the indictment charges no offense. This indictment was attempted to be drawn under section 1019, Code of 1906 (section 777, Hemingway’s Code), which reads as follows:

“Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense' so attempted.”

Under this section there are two necessary elements to constitute the offense, first, the intent to commit an offense; and, second, an overt act toward its commission. State v. Wade, 102 Miss. 711, 59 So. 880; Cunningham v. State, 49 Miss. 685. As is stated in the case of Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L. R. A. (N. S.) 898:

“There must be an attempt to commit a crime, and an act toward its consummation. So long as an act rests on bare intention, it is not punishable; but, immediately when an act is done, the law judgés, not only of the act done, but of the intent with which it was. done, and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.”

In the case of State v. Wade, 102 Miss. 711, 59 So. 880, in speaking of this section of the Code, this court said: “This definition of an attempt to commit a crime' is the same as at common law.”

• The correct rule is thus briefly stated in the case of Hogan v. State, 50 Fla. 86, 39 So. 464, 7 Ann. Cas. 139:

“According to Mr. Bishop, this is bnt the terms of the common law, and seems to require no change from the common-law indictment; but, as the act done must be such as the law recognizes as adequate, and because the accused is always entitled to have the particulars of the accusation stated to him, such act must be specifically averred. While not necessary to allege failure in the attempt, it is necessary to set out both the intent and the act” — citing 2 Bishop, New Crim. Proc. 86.

See, also, note to this case, with authorities sustaining this doctrine.

From these authorities it is evident that this indictment charges no offense against this appellant, and that the demurrer thereto should have been sustained.

Judgment reversed, demurrer sustained, and appellant will be held to await the action of the grand jury.

Judgment reversed.