CRADDOCK v. STATE, Miss., Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Attorney(S)

J.M. Alford, for appellant. On careful examination and consideration of the testimony of Mr. Sam Russ, one of the two eye witnesses for the State, a state of facts is there testified to by the witness that falls within the holdings of this court in the case of Toler v. State in 143 Miss. 96, 108 So. 443. The testimony of Mr. Russ shows that the appellant was in very close range of him with drawn pistol in his hands with his finger on the trigger but the appellant did not shoot and we submit that the appellant could have shot in an instant by just pulling the trigger but he did not do it, which we say under the facts and the law, negatives any intent whatever to kill and murder Mr. Sam Russ. Intent being the gist of the case, the crime, under the facts and the law, was not committed. On a careful examination and consideration of Mr. Weston Lott's testimony, who is the other eye witness for the State, it is clearly shown that the appellant's threat to kill Mr. Sam Russ was purely and certainly a conditional threat. Mr. Weston Lott said of the appellant "He had his finger on the trigger and told Sam three times he would shoot him, `if he moved'," which shows a state of facts that negatives any intent whatever to kill and murder Mr. Sam Russ, and falls within the holding of this court in the case of Stroud v. State, 131 Miss. 875, 95 So. 738. Also this case, the case at bar, falls within the holdings of the case of Hariston v. State in 54 Miss. 689, 28 Am. Rep. 392, Wharton Criminal Law, Vol. 2, 1027, paragraph 801, and 5 C.J. 719, paragraph 178. The testimony of the other two witnesses who testified for the State is silent on the question of the appellant's intent to kill and murder for the reason they were not present when the appellant was taken into custody by Mr. Russ and Mr. Lott. R.O. Arrington, Assistant Attorney General, for appellee. Mr. Sam Russ, deputy sheriff of Pearl River County, testified: "Q. Tell the court and the jury what the defendant said, and what he did with reference to attempting to shoot you, Mr. Russ? A. Well, he said, `Don't move you son-of-a-bitch, I'm going to kill you,' and he said that three times, and he was holding the gun with both hands with his finger on the trigger." Weston Lott, marshal of the City of Picayune, who was present at the time the arrest was made, testified as follows: "Q. What was the defendant, Carl Craddock, doing while you were pulling the gun away from Mr. Russ? A. He was trying to keep me from it. He had his finger on the trigger and told Sam three times he would shoot him if he moved." Taking into consideration the testimony of Mr. Russ, deputy sheriff, with reference to what the appellant did and said at the time of the arrest, a close question is presented, especially when looking to the Toler case for a guide. As to the testimony of Mr. Lott, who testified that the appellant said, "Don't move, I will kill you," and appellant told Russ three times that he would shoot him if he moved, is clearly a conditional threat and brings it within the holding in the Stroud case unless it could be held that Mr. Lott prevented him from shooting Mr. Russ by the reason of the fact that he caught his arm and jerked it over to the side.

Judges

Griffith, C.J.

See more information ...

Smart Summary

Please sign up to generate summary.

CRADDOCK v. STATE.

1. Appeal — interpretation State's testimony.

When there has been a verdict of guilty on substantial testimony in behalf of the State but that testimony is manifestly capable within itself of two reasonable interpretations, the interpretation which is favorable to the defendant will be put upon it, in view of the fact that the burden of proof is on the State.

2. Criminal law — assault with intent ot kill — pointing pistol with conditional threat.

Pointing a pistol at a person with a threat to kill the threatened person if he moved, does not constitute assault with intent to kill, because the threat was conditional and the full intent essential to the offense did not come into existence when the threatened person did not move and the accused did not shoot.

3. Appeal — criminal procedure — when accused held to answer charge of lesser offense.

Where the evidence is insufficient to sustain a conviction of assault with intent to kill, but is sufficient to sustain either of three other different offenses, the accused will not be discharged but the order will be a reversal and a remand.

Griffith, C.J.

(Hn 1) In view of the verdict we will accept the testimony introduced by the State as constituting a true account of what happened, but at the same time, in view of the fact that the burden of proof is on the State, we must must interpret that testimony in favor of the defendant when it is manifestly capable of two reasonable interpretations, and so construing it, the proof is that the defendant pointed his pistol at the deputy who was attempting to arrest him and that the defendant at the same time said to the deputy that he, the defendant, would shoot the deputy if he moved. The deputy did not move and the defendant did not shoot, as he easily could have done. (Hn 2) This brings the case within Stroud v. State, 131 Miss. 875, 95 So. 738, wherein it was said: "The intent in such a case is the main ingredient of the offense; and where the facts show that the intent to kill was conditioned upon the happening of some other event, which may, within reason, fail to take place, the real intent to kill and murder does not come into existence." See also Toler v. State, 143 Miss. 96, 108 So. 443. Therefore the testimony does not support the verdict and judgment of a felonious intent to kill and murder, and the judgment must be reversed, and the defendant acquitted so far as the charge last stated is concerned.

(Hn 3) We are not authorized, however, to discharge the defendant, for as said in the Stroud case, supra, the testimony is sufficient to sustain the charge of assault, wherefore the case will be remanded.

When the case comes up on the remand with the charge of intent to kill and murder eliminated, it will be observed that the indictment as it will then stand charges three different offenses. It charges an assault; it charges the pointing or aiming a pistol at or toward another, and it charges the resisting of arrest. We express no opinion as to what the Court should do with or under the indictment as it shall then stand, our sole purpose in adding this paragraph being to make it known that we intimate no opinion as to what the Court shall now do with or under the indictment, that matter not being directly before us on this appeal, and not having been argued by the parties to the record.

Reversed and remanded.

CRADDOCK v. STATE

CRADDOCK v. STATE.

Comments