Stapleton v. State

95 So. 86 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted for an attempt to distill intoxicating liquors, the indictment reading as follows:

“The grand jurors for the state of Mississippi, elected, impaneled, SAVorn and charged, in and for Covington county, state aforesaid, in the name of and by the authority of the state of Mississippi, upon their oath present that Walter Stapleton, Grover Miller and Otbo 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: Against the peace and dignity of the state of Mississippi.”

This indictment was demurred to, and the demurrer overruled. Thereupon appellant was placed upon trial and convicted and sentenced to the penitentiary for one year; from which judgment he appeals here.

The overruling of the demurrer to the indictment is one of the assignments of error.

It will he noted from a reading of the indictment above set out that the particular acts relied on to constitute the overt act necessary to establish an attempt to commit an offense is not set forth in the indictment. The statute upon which the indictment is predicated is section 1049, Code of 1906 (Hemingway’s Code, section 777), and 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.”

The statute is of course in general terms, and while ordinarily an indictment may follow the language of the statute, this is not true where the statute does not define particular acts which make the offense, but leaves to the circumstances of the case the proof of one of many possible acts which would go to make up the offense.

In Harrington v. State, 54 Miss. 490, at page 494, the court, in discussing the rule applicable, said:

“Though, as a general rule, it is sufficient to charge a statutory offense in the words of the statute, yet this rule does not apply where there are, in the language of the statute, no sufficient words to define any offense. Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544.”

This rule has been approved in the subsequent case of Finch v. State, 64 Miss. 461, 1 So. 630; State v. Bardwell, 72 Mis. 538, 18 So. 377.

In 3 Enc. PI. & Pr., p. 98, in. discussing the indictment for attempts, it is said: ■'

“Indictments for attempts to commit crimes must aver the intent and the overt act constituting the attempt; but the overt act charged need not be the last proximate act to the consummation of the offense attempted.”

In support of this rule is cited State v. Wilson, 30 Conn. 500; Com. v. McLaughlin, 105 Mass. 463; Com. v. Sherman, 105 Mass. 169; State v. Utley, 82 N. C. 556; State v. Colvin, 90 N. C. 717; Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686; Com. v. Clark, 6 Gratt. (Va.) 675; Hicks v. Com., 86 Va. 226, 9 S. E. 1024, 19 Am. St. Rep. 891; State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66.

In State v. Wilson, 30 Conn. 500, it is held that the overt act must be such as is itself adapted to produce the intended effect; and that it may be seen to be so adapted it must bé so averred.

In State v. Brannan, 3 Nev. 338, it is held that an indictment charging an attempt to commit a crime must set out the acts constituting the attempt, and a failure to do'so renders the indictment defective. See, also, In re Lloyd, 51 Kan. 501, 33 Pac. 307.

Borne few states liold to the contrary, but we think that the indictment ought to aver the overt act as well as the felonious intent necessary in felonies to make out the case. It would be unfair to the defendant to require him to run the gauntlet of any and every act that might be sufficient, if proven, to constitute the attempt.

It follows that the demurrer ought to have been sustained. The judgment Avill be reversed, the demurrer sustained, and defendant held on his bond to await the action of the next grand jury.

Reversed.