Nichols v. State, 46 Miss. 284

Nichols v. State

46 Miss. 284 | Miss. | 1872

Tabbell, J. :

The plaintiff in error, upon an indictment charging him with manslaughter-in the killing of one Gf-ibby Jones by shooting, was tried and convicted at the November term, 1870, of the Issaquena county circuit court. From the verdict and judgment a writ of error was prosecuted to have the proceedings in the case reviewed by this court. A motion to quash the indictment was overruled, and this constitutes the first assignment of error. Reference to the record fails to show grounds of the motion, so that we are not. informed of the points to which the attention of the court below was directed. In this state the motion to quash has been regarded in the nature of a demurrer, and the subject of exception and review, on error, though the authorities hold action upon it to be within the sound discretion of the court. Bish. on Cr. Pr. Treating the motion in this case as a general demurrer, the indictment and record are brought under review. 1 Bish. Cr. Pr.

The objection of counsel to the grand jury is met by art. *287131, Code of 1857, p. 499, by which, fraud alone is made the subject of challenge to the array, no other objection can be raised by plea or otherwise. Counsel objects that art. 257, Code, 614, was not observed. The record recites that, “ona later day of said term, to wit, on Thursday, 10th day of November, 1870, the following order was entered,” to wit: “ The grand jury returned into court several indictments, each indorsed “A true bill. L. T. Wade, foreman,” which were received by the court and ordered to be marked ‘filed’ by the clerk, which was this day done, whereupon bench warrants were issued thereon returnable instanter, and the indictment upon which the defendant was tried is in the words and figures following.” Then follows the indictment, indorsed with the title, “A true bill, L. T. Wade, foreman grand jury. Filed November 10, 1870, and capias issued.”

This record is not as clearly expressed as it ought tó be ; but, inferentially, the indictment upon which the accused was tried was the same presented by the grand jury, on the 10th of November, 1870, or one of the several presented on that day. The indictments were returned into court on the 10th; they were received by the court, ordered filed, and bench warrants issued on the same day thereon. This indictment was filed by the clerk on the day named; the accused was arrested on the capias issued thereon, entered into bonds for his appearance, and was tried upon the said indictment. Had the attention of the court been called to this particular subject, there is no doubt the facts were ample for a full and minute record. As it does not appear that this opportunity of correction- was afforded at a time when, in the power of the court to permit it to be done, we give it less consideration than we otherwise would. Nevertheless, the clerk certifies that the indictment in the record is the one upon which the accused was tried, and it may be fairly inferred that the same was of the number presented by the grand jury on the 10th of November, 1870. On this point the record is unlike that in Hague v. the State, 34 Miss. *288616, or in Laura, a slave, v. the State, 26 ib. 174. While an absolute defect will not be cured, or a positive fact supplied by presumption, yet, when the difficulty arises from the inartificial use of language, and it is evident the statute has been complied with, liberality will be indulged in support of the record.

To the indictment it is objected that, as the pleader has not literally followed the statute, the indictment in this case must be tested by the rules of the common law. The indictment charges that “ Washington Nichols unlawfully, in and upon one Gribby Jones, feloniously and willfully, did make an assault with a certain gun, said gun being loaded with gun powder and a leaden bullet, and being then and there a deadly weapon, and him, the said Gribby Jones, with said gun, did then and there feloniously and willfully shoot, wound and kill.”

Article 265, p. 615, Code of 1857, re-enacted in the Code of 1871, provides a very simple form of indictment in cases of murder and manslaughter, and, being thus simplified, ought to be literally followed. Under this statute it is only necessary, in case of manslaughter, to charge that the accused did “feloniously kill and slay” the deceased, omitting the attending facts and circumstances. But even this statute is not followed in the case at bar, nor does the indictment meet the requirements of the common law. If the statutory words were fully embraced, we would disregard the defective statement of facts, according to the common-law tests, but the indictment conforms to neither. It is proper to adopt either course. It is unnecessary to mingle both forms. When challenged, however, the indictment must be sufficient, according to the one or the other standard. The statutory regulation, prescribing the words in which murder and manslaughter may be charged, is recommended as generally appropriate and prudent.

The third assignment of error is, “the court erred in refusing to give the third, fifth and sixth instructions asked by defendant.” These instructions are: 3d. “If the jury *289believe, from the evidence, that the killing occurred in the course of an amicable or playful personal contest between the deceased and the defendant, for the possession of the pistol, and that in such contest the pistol fired accidentally and produced thereby the death wound, they will find the defendant not guilty.” 5th. £‘If the jury believe, from the evidence, that the deceased came to his death by the discharge of a pistol, the possession of which, at the time of such discharge, was the subject of an amicable or playful personal contest between the deceased and the defendant, and that such discharge was the result of such contest, and that it is a matter in which the jury have a reasonable doubt, arising from the evidence in the case, as to whether the pistol was fired by the defendant or by the deceased, they will find the defendant not guilty.” 6th. “If the jury have a reasonable doubt, arising from the evidence in the case, as to whether the deceased came to his death by his own negligent act, or that of the defendant, they will find the defendant not guilty.”

The court erred in refusing to submit to the jury, substantially, the leading propositions involved in the instructions above quoted, and asked by the accused, as the questions therein prop ounded were authorized by the evidence. Jacob Slimp testified: That the accused and deceased were “playing and scuffling for the pistol.” Again he says, ‘ ‘ When I last saw them they were playing with the pistol, and Gfibby was trying to take the pistol away from Wash.”

Anthony Chism testified : “ Gfibby then called Wash, and he rode over to where Gfibby was, and Wash, said to Gfibby, ‘ show me your-Gfibby said, £I don’t want to have no fooling.’ Gfibby then reached up to try to take the pistol from Wash.” Witness then turned away to work, and had his back to the parties when the pistol fired. Neither of the witnesses saw the pistol fired; each had turned away to work as the deceased reached up for the pistol; each gave substantially the same testimony. Upon *290this testimony the accused Rad a right to Rave tRe issues contained in tRe third, fifth and sixth charges asked by him and refused by the court passed upon by the jury. Regarding this refusal as erroneous, the accused is entitled to another trial. In reaching this conclusion we shall be understood as neither expressing nor entertaining any opinion as to the guilt or innocence of the plaintiff in error.

The judgment is reversed, the indictment is quashed, and the accused is ordered to be detained in custody by the authorities of Issaquena county, to await the future action of the circuit court of that county.