ROWLAND v. STATE

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Docket Number

No. 33270.

Attorney(S)

J.E. Aldridge, of Winona, and Alfred Moore, of Hattiesburg, for appellant. The very heart of the crime of murder, or any other homicide, is the killing of "a human being," and no indictment can charge the crime of murder or homicide without specifically charging that the murder or homicide was committed upon a "human being." This indictment does not charge that the assault and battery was committed upon a human being and is void. If we are correct in our contention that this indictment is void upon its face for the reason it does not charge an assault and battery with intent to kill a human being, the fact that the appellant was tried, convicted and sentenced under that indictment cannot cure this fatal defect. U.S. v. Hess, 124 U.S. 483, 8 Sup. Ct. 571, 31 L.Ed. 516; 22 Cyc. 293, par. C. It is respectfully submitted that it was a material issue of fact whether the pistol was or not a deadly weapon. If it could be said that the court would take judicial notice of the fact, from all of the other evidence in the case, that the pistol was a deadly weapon, and likewise the jury also, the point is that the instruction granted the state by the court relieved the jury from taking any notice whatever of the character of the pistol. The instruction eliminated absolutely from the case, as a material part of it, the question whether or not the pistol was a deadly weapon. If the instruction had submitted the issue to the jury the jury may have found from the actual evidence in the case that the pistol was a deadly weapon, or it may have substituted in lieu of actual testimony judicial notice that it was a deadly weapon, but under the instruction it did not have to do either. The jury was authorized by the instruction to ignore the issue altogether. W.D. Conn, Jr., Assistant Attorney-General, for the State. The omission of these words "a human being" was a defect apparent on the face of the indictment. It should have been availed of by demurrer and this prior to the impaneling of the jury. Section 1206, Code of 1930. It cannot be taken advantage of in the Supreme Court for the first time unless the defect were an unamendable one. Pittman v. State, 107 Miss. 154, 65 So. 123; Reed v. State, 171 Miss. 65, 156 So. 650; McGaha v. State, 173 Miss. 829, 163 So. 442. If the defect were an amendable one, it cannot be complained of in this court for the first time. Richberger v. State, 90 Miss. 806, 44 So. 772; Winston v. State, 127 Miss. 477, 90 So. 177; Pittman v. State, 127 Miss. 256, 90 So. 2; Moran v. State, 137 Miss. 435, 102 So. 388; Evans v. State, 92 Miss. 34, 45 So. 706; Williamson v. State, 167 Miss. 783, 149 So. 795; Williams v. State, 130 Miss. 827, 94 So. 882. It need not be averred that the deceased was a human being. The name imports a human being. The language of the indictment and the name applied to the deceased are always used to describe human beings. Palmer v. People, 138 Ill. 356, 28 N.E. 130; Bowers v. State, 122 Wis. 163, 99 N.W. 477; People v. McNulty, 93 Col. 427, 26 P. 597, 29 P. 61; Merrick v. State, 63 Ind. 327; State v. Stanley, 33 Iowa 526; Bohannan v. State, 14 Tex. App. 271[ 14 Tex.Crim. 271]; People v. Gilbert, 199 N.Y. 10, 92 N.E. 85; Reed v. State, 16 Ark. 499; People v. Vaughn, 111 P. 620; Cremar v. People, 30 Col. 363, 70 P. 415; Sutherland v. State, 121 Ga. 591, 49 S.E. 781; Kirkham v. People, 170 Ill. 9, 48 N.E. 465; Porter v. State, 173 Ind. 694, 91 N.E. 340; Perryman v. State, 36 Tex. 321; Ringo v. State, 54 Tex.Crim. 561, 114 S.W. 119; State v. Day, 4 Wn. 104, 29 P. 984. Appellant complains of the first instruction given at the request of the state. His complaint is that the instruction assumes as a fact that a pistol is a deadly weapon. He contends that it should have been left for the jury to determine whether the pistol was a deadly weapon or not. Assuming that the instruction does assume as a fact that a pistol is a deadly weapon, we submit that it was not erroneous for this reason. A pistol is declared by statute to be, per se, a deadly weapon. Sections 853-860, Code of 1930.

Judges

Anderson, J., delivered the opinion of the court.

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ROWLAND v. STATE.

1. CRIMINAL LAW.

The failure of an indictment for assault and battery with intent to kill to allege that assaulted person was a human being could not be urged for the first time on appeal (Code 1930, section 1206).

2. CRIMINAL LAW.

In prosecution for assault and battery with intent to kill, instruction which assumed that a pistol used was a deadly weapon was not erroneous, in view of statute denominating a pistol as a deadly weapon (Code 1930, section 853).

Anderson, J., delivered the opinion of the court.

Appellant was indicted and convicted in the Circuit Court of Monroe County of the crime of assault and battery on Emmett Merchant with intent to kill and murder, and sentenced to the penitentiary for the term of five years. From that judgment, he prosecutes this appeal.

The indictment failed to charge that Emmett Merchant was a human being. Appellant argues that, therefore, it charges no offense. The indictment is not void. At most, it is only defective. Our Court has not passed on the question, but Courts in other jurisdictions have held that such an omission is not even a defect. Palmer v. People, 138 Ill. 356, 28 N.E. 130, 32 Am. St. Rep. 146; Bowers v. State, 122 Wis. 163, 99 N.W. 447; People v. McNulty, 93 Cal. 427, 26 P. 597, 29 P. 61.

We do not pass on that question because it is not necessary. Under Section 1206 of the Code of 1930, if a defect it should have been availed of by demurrer to the indictment prior to the impaneling of the jury. The question cannot be raised first on appeal. McQueen v. State, 143 Miss. 787, 109 So. 799; Moran v. State, 137 Miss. 435, 102 So. 388; Patterson v. State, 127 Miss. 256, 90 So. 2.

Appellant argues as error the giving of an instruction for the state in which it was assumed that a pistol used was a deadly weapon. There is no merit in this contention. Section 853 of the Code denominates a pistol as a deadly weapon. Appellant's other assignment of error is without sufficient merit to call for discussion by the Court.

Affirmed.

ROWLAND v. STATE.

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