74 So. 677 | Miss. | 1917
Lead Opinion
delivered the opinion of the court.
The question in this case is: Did the indictment preferred against the defendant charge any crime known to the law? Omitting the formal part of the indictment, the offense attempted to be charged is in these words:
*844 “That Oscar Willis, on the 5th day of September, 1916, in the county and district aforesaid, willfully, felo-niously and maliciously, then and there attempt to shoot and wound one V. K. Eeed with a deadly weapon, to wit, a shotgun, intending thereby with malice aforethought to kill and murder the said V. K. Eeed, against, ” etc.
It will he observed that the indictment does not charge that the defendant attempted or did attempt to shoot V. K. Eeed. The omission of the word “did” has been held to be a fatal error in three cases heretofore decided by this court: Cook v. State, 72 Miss. 517, 17 So. 228; Hall v. State, 44 So. 810; McCearley v. State, 97 Miss. 556, 52 So. 796. It is conceded by the attorney-general that the case must be reversed if we follow these decisions. It is insisted that the decisions referred to are extremely technical, and should be overruled. We do not concur in this criticism of the decisions and decline to overrule them, and the judgment of the trial court is therefore reversed, and the cause remanded.
Reversed and remanded.
Dissenting Opinion
In dissenting from the majority opinion in this case I desire to record my views briefly. I realize that my dissent is contrary to the rule in this state as announced in Cook v. State, 72 Miss. 517, 17 So. 228, which decision was followed by this court in two other cases. But I believe that the decision in the Cook Case is wrong, as the defect in the indictment there leaving out the word “did” was a mere clerical error, inadvertently made, and was not a substantial defect, nor an integral part of the indictment, such as would make the indictment void. However, it will be noticed that the indictment in the Cook Case is somewhat different from the indictment in the case here. The indictment complained of as being fatally defective in this case is as follows:
*845 “That Oscar Willis, on the 5th day of September, 1916, in the ^county and district aforesaid, willfully, fe-loniously and maliciously, then and there attempt to shoot and wound one V. K. Reed with a deadly weapon, to wit, a shotgun, intending thereby with malice aforethought to kill and murder the said V. K. Reed, against,” etc.
It will he observed that the alleged defect in the above indictment consists only of the omission of the auxiliary verb “did,” or the omission of “ed” added to the word “attempt.” If either had been written into this indictment there would be no claim of defect whatever. By reading the Cook Case, supra, it will be seen that the reasoning of the court there seems to be based upon the speculation that the grand jury may have intended to charge the accused with an “attempt” instead of the commission of the crime. The indictment here charges only an attempt, so that there is a distinction, if not a material difference, in the two indictments. But aside from any such refined distinction as this, I do not think that the omission of the word “did” or “ed” in 'this indictment invalidates it. -
During the last decade, the bar, bench, and the laity have been complaining about technical procedure causing delay and injustice in the courts of our country; and much has been preached against the delay of the law on account of technical and antiquated rules of procedure and practice, generally in favor of the criminal, but we find some courts still clinging to the old out of date technical rules, which are in some instances so absurd as to be amusing to the criminal himself when on trial.
I do not think that an indictment should be held to be void, if from the entire language used in the indictment the plain intendment and clear meaning is ascertainable by a person of ordinary intelligence, and the accused is reasonably informed of the nature and cause of the accusation, and a conviction or acquittal under the
Tbe omission of tbe word “did,” or “ed,” in the above indictment is not a fatal defect, bnt is merely an unsubstantial clerical error, inadvertently made in writing the charge. This mistake is not vital, as the intendment and plain meaning of the accusation is clearly apparent to any person of average intelligence. It fully informs the accused of the nature and cause of the accusation upon which he is to be tried. Whether we say that the word “did” or the addition of “ed” to the word “attempt” may be supplied by construction here, and the inadvertent omission be read into the indictment in order to establish its plain intendment and meaning, or whether we say that the obvious intendment and plain meaning is safely ascertainable without supplying such omission, makes little difference, so long as the correct and just concluson is reached as to the validity of the written charge.
Words are mere vehicles, used for the purpose of conveying thoughts and ideas, and when the thought and idea intended clearly appears from the contest of the indictment, the language has adequately served its purpose. The omission of the verb “did'” may be supplied wherever the language used in the whole indictment justifies the conclusion that it was a clerical mistake, and without it the accused has full information as- to the offense he is called upon to defend. It is not an integral part nor essential ingredient of the offense charged here, but is merely an omitted word used in the presenting part of the indictment. And while the indictment with this word omitted is imperfect, still the deformity is not such as to destroy the.vitality of the whole written accusation. While the indictment may be deformed, or defective in form, yet it does not follow that it is entirely lifeless. The essentials of the crime are fully stated in-the indictment here. The accused was in no way prejudiced or embarrassed in making his defense to the
The main purpose of an indictment is to reasonably notify the accused of the exact offense he is charged with having committed, and for which he is to be tried, so that he may prepare and make his defense to the charge. The purpose of court procedure is not to shield the guilty, but to protect the innocent, and afford to both the guilty and innocent a fair and full hearing on the merits of the accusation. No more can be demanded by the accused. In the past the courts have required such technical strictness in criminal procedure as to merit just censure from the bar and the public. The trend of modern judicial thought is opposed to upholding mere technical unsubstantial errors, and I heartily agree with this view. The accused cannot justly complain unless he has been deprived of some substantial right under the law. This rule is a safe guide in the administration of justice.
In the case before us the accused raised no objection either by motion or demurrer to the indictment in the lower court, but he presented the merits of his defense to the lower court and jury, and upon conviction he appeals and raises the point of a defective indictment for the first time in this court, and now asks that he be granted another chance of acquittal before a jury because the word “did” was left out of the indictment. I am aware of the fact that this court has. held in the Cook Case, supra, that the invalidity of a felony indictment cannot be waived, and may be presented in this court for the first time in any felony charge. But I also think that this latter rule is wrong; and while it seems to be
The majority opinion relies entirely upon the Cook Case, supra, and proposes to follow that case as the rule in this state. I am reluctant to overrule any prior decisions of this court, unless it clearly and manifestly appears that such decision is erroneous; and of course where property rights or the rights of life or liberty, are involved, and would be disturbed or injured, I would especially hesitate to overrule a former decision of this court. In fact, I am sincere in my support of the doctrine of stare decisis; but the decision of the question before us here now cannot injure the welfare of any person, nor disturb any property interest, if the decision in the Cook Case were overruled, and I think that it should have been done. But the majority here contend that the decision in the Cook Case has stood so long as the law of this state that they do not feel constrained to overrule it. I think that it is time now to overrule the Cook Case decision, as too many criminals have already escaped justice through the rule there announced, which is based-upon an immaterial technicality; and it is time to correct this rule of practice and procedure in Mississippi, and let the man charged with/ crime be required to appear in the courts and defend his case upon the merits, and when he has received .a fair and impartial' trial, and it does not appear that he has been deprived of any substantial right due him under the law or the Constitu
There are numerous decisions in the different states of America which fully sustain the views that I have expressed above. In fact, the weight of the best authority in other states favors my position in this case. I cite here below a few .authorities which sustain my opinion, and they appear to announce the right and reasonable conclusions on the subject; Stallworth v. State, 155 Ala. 14, 46 So. 518; Dickens v. State, 50 Fla. 17, 38 So. 909; State v. Whitney, 15 Vt. 208; State v. Edwards, 19 Mo. 674; People v. Duford, 66 Mich. 90, 33 N. W. 28; Caesar v. State, 50 Fla. 1, 39 So. 470, 7 Ann. Cas. 45; People v. Haagan, 139 Cal. 115, 72 Pac. 836; State v. Hawkins, 155 N. C. 466, 71 S. E. 326; Caples v. State, 3 Okl. Cr. 72, 104 Pac. 493, 26 L. R. A. (N. S.) 1033; Krueger v. People, 141 Ill. App. 510; Couch v. State, 6 Ala. App. 43, 60 So. 539; Smith v. United States, 157 Fed. 721, 85 C. C. A. 353; People v. Miles, 123 App. Div. 862, 108 N. Y. Supp. 510; Jones v. United States, 162 Fed. 417, 89 C. C. A. 303; Bowes v. State, 8 Okl. Cr. 277, 127 Pac. 883; State v. Sharp, 121 Minn. 381, 141 N. W. 526; Rutland v. Commonwealth, 160 Ky. 77, 169 S. W. 584; Deen v. State, 7 Okl. Cr. 150, 122 Pac. 941; State v. McAninch, 172 Iowa, 96, 154 N. W. 399; Gamblin v. State, 45 Miss. 658.
‘ ‘ The extreme technical accuracy anciently required called forth the remarks of Lord Hale that ‘The great, strict, and unseemly niceties required in some indictments tend to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonor of God.’ It is plain, however, that much of the tautology and prolixity which characterized indictments in the early period of criminal procedure can be safely avoided without any infringement,of the right of the accused to demand the nature and cause of the accusation against him, and it is the policy of modern courts to disregard mere technical objections and to re
“The charge in the indictment that the defendant ‘kill’ the deceased is so plainly a clerical mistake in leaving off ‘ed’ that it is self-correcting; and so, also, is the omission of the word ‘is’ in the usual formula, ‘whose name is to the grand jury unknown.’ ” Stallworth v. State, supra.
“The rule for the interpretation and construction of even indictments, which are construed more strictly than affidavits ... is, if the sense is clear, nice, or technical exceptions are not to be favorably regarded, and verbal inaccuracies, or clerical errors, which are explained and corrected by necessary intendment from other parts of the indictment, or errors in spelling, which do not obscure the sense, are not fatal.” Couch v. State, supra.