State v. Sims

80 Miss. 381 | Miss. | 1902

Terral, J".,

delivered the opinion of the court.

The appellee was indicted for assault and battery with intent to kill and murder. The indictment with great particularity and technicality of expression averred that Clink Sims, “in and upon Shelley Thompson did feloniously make an assault with a certain deadly weapon, to wit, a brick, and with said brick did then and there willfully and feloniously strike and wound said Shelley Thompson, with the willful and felonious intent then and there him, the said Shelley Thompson, willfully, feloniously, and of his malice aforethought to kill and murder, against the peace and dignity of the state of Mississippi.” A demurrer to the indictment was sustained, and counsel for appellee argues here the invalidity of the indiciment.

If we understand his argument, it is that a brick is not a deadly weapon, because it is not mentioned as such in § 1026, code 1892. Neither is an ax or a hatchet, a shotgun, or rifle mentioned in § 1026. Nevertheless, they are deadly weapons. In all cases of attempts to kill with a deadly weapon, the indictment ought to aver that the instrument used was a deadly weapon, except, perhaps, where the implement used is declared a deadly weapon by statute, and unless the instrument is described by law as a deadly weapon it should appear to the jury from the proof to be one; and whether it be one or not must be determined by the proof, of which the jury are the judges. In many cases proof of the instrument used would be sufficient proof that it was so, without further evidence on that point. In Hamilton v. People, 113 Ill., 38 (55 Am. Rep., 396), it is said that an ax or a hoe is per se a deadly weapon, fully as much as a loaded pistol. The brick here used is alleged to be a deadly weapon, and the manner of its use, when laid before the jury, would enable them to decide whether or not it was a deadly weapon. The most usual cases of felonious assaults that we hear of are those made by pocket knives, which are not mentioned in § 1026 of the code, and it has never been thought that such indictments are defective because pocket knives are not described as deadly weapons by legislative authority. In Spradley’s case, ante, p. 82, s.c., 31 So., 534, the implement used was a grass blade, which was charged to be a deadly weapon, and we approved the indictment there; while in the case of James Owens, now under sentence of death, the instrument used was a pocket knife, and the use of that instrument was considered sufficient to support a conviction for murder. The writer has known an old and feeble woman to be convicted of manslaughter by striking with a penknife a strong and vigorous man, who was dragging her from his field, because the penknife accidently penetrated a vital part of his body. If the instrument, whatever it be, kills, it carries strong evidence of its being deadly; and, in any case, it is for the jury to decide.

The counsel, as we understand him, insists that the mariner in which the brick was used should be set out; but we see no more reason for such an allegation than would exist in the case of an ax, hoe, pistol, or other lethal weapon. Where the offense is committed with a deadly weapon, not prescribed such by statute, no more particularity of statement is necessary than when it is committed by the use of a weapon declared deadly by statute. The indictment here is as fully particular and technical as the one held'to be good in Spradley’s case, ante, p. 82, s.c., 31 So., 534. When a deadly weapon is not used, and a felonious killing or assault is intended to be alleged, the means expressive of such purpose must be averred, several instances of which are to be found in Wharton’s Precedents, as in form No. 244. If one person, being stronger than another, should, with his mere fists and feet, beat and stamp such other person upon his head and body with such violence and long continuation that death therefrom ensued, there the violence and continued beating should be alleged as a means of committing murder; for a single blow with fist or foot could not, under our law, support a conviction for a felonious assault. The indictment here is, we think, good for a felonious assault and battery.

Reversed and remanded.