67 Miss. 346 | Miss. | 1889
delivered the opinion of the court.
The appellant has been convicted of the offence of prize-fighting in violation of an act entitled, “ An act to prevent prize-fighting in this state and for other purposes,” approved March 7, 1882. The first section of the act declares that, “ it shall be unlawful for any person to engage in prize-fighting in this state, and any person engaged in such prize-fighting shall be deemed guilty of a misdemeanor, etc.”
The indictment contains two counts, the first for a violation of the above statute, and the second for an assault and battery. Appellant was acquitted under the second count and convicted under the first. The defendant pleaded in abatement, to the indictment, to which pleas demurrers were sustained, and after conviction he moved in arrest of judgment and for a new trial, and, both motions being denied, he prosecutes this appeal. So much of the indictment as is brought into review is as follows:—
“The state of Mississippi, county of Marion. In the circuit court for the second judicial district of Marion county, at the special August term, 1889. The grand jurors of the state of Mississippi, upon their oaths, present that, John L. Sullivan, in the second judicial district of Marion county, Mississippi, on the 8th day of July, A.D. 1889, by and in pursuance of a previous appointment and arrangement, made to meet and engage in a prize-fight with another person, to wit: with Jake Kilrain, did then and there, and for a large sum of money, the exact amount of which is to the grand jurors aforesaid unknown, did then 'and there, to wit; on the 8th day of July, 1889, in the second judicial district of Marion county, Mississippi, unlawfully engage in a prize-fight with the said Jake Kilrain, to wit; did then and there enter a ring, commonly called a prize-ring, and did then and there in the said ring, beat, strike, and bruise the said Jake Kilrain; against the peace and dignity of the state of Mississippi.
“ Jas. H. Neville, dist. atty.”
This count is fatally defective as one charging the apppellant with the offence of prize-fighting. The statute neither defines the offense
In indictments for purely statutory offenses it is sometimes sufficient to charge the offense by using only the words of the statute. This may be done where the language of the statute is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to any other acts than those made unlawful. Our statute against retailing (code 1880, § 1097) is an apt illustration of statutes of this character. It declares that, “ It shall not be lawful for any person to sell vinous or spirituous liquor in a less quantity than one gallon, without having first obtained a license in the manner directed by this act.” Here the nature and character of the prohibited act is clearly set out, and there is an exclusion of its application as to the only class of persons, licensed dealers, who may sell in the quantity named without guilt.
But where the act prohibited does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the statute, it is not sufficient to indict by the use only of the statutory words; under such circumstances, the indictment must charge in apt language the unlawful act, that the defendant may be advised of the nature and character of the offense with which he is charged, and that he may by demurrer take the opinion of the court whether the facts charged constitute an offense.
In Jesse v. The State, 28 Miss. 100, the defendant had been indicted under a' statute which provided that, “ If any slave be guilty of burning any dwelling-house, store, cotton-house, gin, or out-house, barn, or stable, etc.” The indictment was in the words of the statute, and it was held insufficient, for the reason that the statute was intended to punish a malicious burning only.
A statute declared that, “ If any clerk of any court, or public officer, or any other person, shall wittingly make any false entry, or erase any word or letter, or change any record’belonging to any court
“ The verdict of a jury does nothing more than verify the facts charged ; and if these do not show the party guilty, he cannot be considered as having violated the statute.” Shaw, C. J., in Commonwealth v. Odlin, 23 Pick. 275. Where, therefore, the language of the statute is broader than its purpose, and the indictment is in the words of the statute, it cannot be told whether the jury intended to find the defendant guilty of the act forbidden by the statute, or of those only, within its literal but not its true construction. It is therefore necessary for the pleader to depart from the statute and indict in words aptly charging an offense, in all cases in which the words of the statute do not by legal intendment import a particular offense certainly committed by one who has violated its literal language.
The statute under consideration declares in general terms that it shall be, “unlawful for any person to engage in prize-fighting in this state.” What is a prize-fight is not declared, but must be discovered by the courts from the known meaning of the terms used and the evil intended to be provided against. The meaning of to fight, according to Webster, is “ to strike or contend for victory, in battle or in single combat; to attempt to defeat, subdue, or destroy an enemy, either by blows or weapons.”
We think, however, that the evil sought to be protected against by the statute is the debasing and brutalizing practice of fighting in public places, or places to which the public or some part of it is admitted as spectators. The act was not passed in tenderness to those who participate in such contests, nor to afford them protection by discouraging the practice. We must either construe the act as prohibiting all contests, whether public or private, where a prize or wager is determined by blows, or as intended to apply only where others than the contestants are admitted as spectators.
The second section of the act declares that if death result from the fight, the party causing it shall be guilty of murder, or if mayhem results the punishment for that crime shall be inflicted. By the third section, the aiders and abettors of “such prizefighting” are declared guilty of a misdemeanor. These sections add strength to the conclusion, which would properly be drawn from the first only, that the prize-fighting intended to be prohibited
A private contest between individuals, whether amateurs or professional fighters or boxers, though it be for a prize or wager, would not be a violation of the particular statute under consideration, though the participants might be guilty of assault and battery, or of gaming. A fight or contest under such circumstances would be a fight because a contest determinable by blows, and a prize-fight because a prize or wager would be awarded to the victor, but it would not be a prize-fight within the meaning of the statute, which prohibits such fights only as are offences against public peace and order. Since, therefore, the appellant might fight for a prize under such circumstances as would not be violative of the statute, it is not sufficient to indict by the use of the statutory words only, but the facts which, if proved, show him to be guilty of the statutory offense must be charged.
The indictment is defective for another reason. The offense can only exist where two persons engage in the unlawful act; the parties are severally guilty, but the guilt of each springs from the joint unlawful act; one man cannot commit the offense. The indictment in this case does not follow the usual form by charging that Sullivan and Kilrain fought together and against each other. It avers that Sullivan, “ in pursuance of a previous appointment and arrangement, made to meet and engage in a prize-fight with Jake Kilrain, for a large sum of money, did unlawfully engage in a prize-fight with the said Jake Kilrain, to wit: did then and there enter a ring, commonly called a prize-ring, and did then and there, in the said ring, beat, strike and bruise the said Jake Kilrain, against the peace and dignity of the state of Mississippi.5 55 The clause preceding the videlicet, that Sullivan “ unlawfully did engage in a prize-fight with the said Jake Kilrain,55 is the only portion of the indictment by which even an indirect charge is made, that Kilrain did anything in the fight, and the pleader excludes the conclusion that he did fight, by setting out under the videlicet- how Sullivan so engaged in a prize-fight, viz : by going into a prize-ring,
If the averment of the indictment had been that Sullivan and Kilrain “ fought together and against each other,” the allegation under the videlicet might be referred to Sullivan’s action in such fight, but, as we have said, the antecedent clause only states that Bullivan fought with Kilrain, and the videlicet explains and particularizes the whole of the previous averment by showing how he fought with him. So read the indictment is as though the pleader had said that Sullivan engaged in a prize-fight with Kilrain, by going into a prize-ring, and there beating and bruising him. This avers the several act of Sullivan to constitute a prize-fight, and in the nature of things that cannot be. As we have said, the parties in a prize-fight are severally guilty, but the guilt of each must arise from the joint act of two. The present indictment illustrates the wisdom of the advice given by Mr. Bishop, “ to have nothing to do with the videlicet, unless in exceptional circumstances.”
The judgment is reversed, the first count of the indictment quashed, and the appellant held to answer at the next term of the circuit court of Marion county such indictment as may be preferred against him.