73 Miss. 46 | Miss. | 1895
delivered the opinion of the court.
The appellant was indicted for murder, the indictment being in the form presci-ibed by § 1359 of the code of 1892. He was ■convicted under § 969 of said code, the jury returning this verdict: “We, the jury, find the defendant guilty of pointing a pistol intentionally at the deceased, and the same was then and there discharged, and killed the deceased.” Section 969 provides for three offenses: First, ‘ ‘ intentionally pointing . . any . . . pistol at or towards another, except, ” etc.; ■second, the discharge by any person of such firearm so intentionally pointed — these two offenses being misdemeanors; and, third, “the killing, maiming or injuring of another by such ■discharge, by any person, of such so intentionally pointed firearm, ” which is made a felony, punishable by imprisonment not exceeding five years. The verdict on the testimony and the instructions is manifestly a conviction (the party pointed at being killed, by the apparently intentional discharge of the pistol) of this third offense — -the felony. No other construction of the verdict is reasonable. The court below first took this, the correct, view, and sentenced the appellant to five years’ imprisonment in the penitentiary. Afterwards,.on the hearing ■of the motion for a new trial (one of the grounds of which was that “the defendant was convicted of no criminal offense ”), the court overruled the motion; but, to quote the record, “the ■court, being of the opinion that the conviction was of a misdemeanor, and not a felony, set aside the sentence,” and then ■sentenced appellant to six months’ imprisonment in the county jail, and to pay a fine of fifty dollars. The appellant excepted to the action of the court in overruling the motion for a new trial, and the state excepted to the action of the court in setting .aside the first sentence. Both the state and the appellant were granted sixty days in which to file bills of exception. The
The appellant’s contentions are without merit. Section 969, code of 1892, expressly provides that, “ on the trial of an indictment for a homicide, if the jury shall be satisfied that the accused is guilty under this section, and not guilty of murder or manslaughter, it may . . . render a verdict of guilty under this section.” Hence Moore v. State, 59 Miss., 25, is not applicable. But, unfortunately for. the appellant, we are compelled to £ £ decide the question of law presented by the exception of the state to the action of the court below in setting aside the first sentence. Section 39, paragraph 3, of the code of 1892, provides that “the state may prosecute an appeal from the judgment of the circuit court in a criminal cause from a ruling adverse to the state in every case in which a defendant is convicted and prosecutes an appeal, and in such case the whole record shall be carried before the supreme court on the direct appeal, and the case shall be treated as if a cross appeal had been formally prosecuted by the state.” And, further, that £ £ all questions of .law thus presented shall be decided by the supreme court.” The “ direct ” appeal compels this court to decide all questions of law which have been ruled adversely to the state by the court below, such rulings having been excepted to, and the whole record disclosing the ruling and the exception. We are bound by the statute to treat such case as if a cross appeal had been formally prosecuted. All that would ordinarily be essential to perfect a cross appeal £ £ formally ’ ’— as, for instance, an assignment of errors by cross appellee in a civil cross appeal — -must be treated here as having been done and the case as being one with a cross appeal by the state in the record, in all respects 1 £ formally prosecuted. ’ ’ The purpose of the statute was to provide an inexpensive, summary, simple method of cross appeal for the state in cases falling within said paragraph 3 of § 39 of the code of 1892.
The case is therefore affirmed on the appeal of the appellant, but reversed on the cross appeal of the state, and remanded for sentence on the verdict as being for the felony provided for in § 969 of the code of 1892.
