85 Miss. 330 | Miss. | 1904
delivered the opinion of the court.
The motion for continuance should have been granted, or the court should have postponed the cause to another day of -the term if it saw proper. The docket is called for trial or continuance, and it is not incumbent on him who makes the application to ask postponement to a future day of the same term. The court may do so on the application for continuance if the condition of the public business or the situation in that particular ease makes it advisable.
The testimony of the absent witnesses was of great importance to the accused. The error is not cured because accused himself admitted that, after Bell- had shot him in the face and head, he fired his pistol at Bell while Bell was running. He may, perhaps, be entitled in this case to the benefit before the jury of the principle that, under some circumstances, one may anticipate his antagonist if it appear that his flight was for vantage. To enable them to judge of this, the testimony of the absent witnesses was material, and defendant was entitled to
The sixth instruction was erroneous on its face as matter of law, and it was bad practice to permit its use as it was used. The indictment has two counts in one: First, a perfect charge of an assault with intent to kill and murder; and, second, a perfect charge of assault and battery with that intent. There was no evidence whatever of any battery. On the contrary, it is clear that defendant never hit his man, but it was he who was actually shot. The instruction told the jury that, “even though the indictment charges that defendant did strike and. wound and maim Simon Bell, yet, if the evidence fails to disclose that Simon was shot or wounded, this makes no difference whatever; if the jury believe from the evidence beyond reasonable doubt that defendant shot at him, Simon, with intent to kill Simon when he was not in real or apparent danger of losing his life, or of great bodily harm at the hands of Simon, then the defendant is guilty, and this is true even though he failed to hit him with either of his shots.” The verdict w'as, “Guilty as charged in the indictment;” thus, in obedience to the charge, convicting of the battery as well as of the assault. In 1 Whart. Or. Law (10th ed.), sec. 640, it is said: “But there can be no conviction of a battery unless a battery be averred or implied.” Every battery implies an assault, of course, because there can be no battery without an assault; but there may be an assault without any battery. The jury may convict of an assault under an indictment for assault and battery, but may not convict of assault and battery with no evidence of battery. An assault is simply an attempt to hurt, with the power to hurt, while the battery, is where the hurt is done pursuant to the assault, and a defendant should not be convicted of what he has clearly not done. Our own statute (Oode 1892, § 967) draws the distinction. It provides: “Every person who shall be convicted of . . . any assault or assault and battery,” etc., shall be punished, providing the same punishment. The
Reversed and remanded.