McGINNIS v. STATE

A.Q. Broadus, of Purvis, for appellant.

Appellant filed a petition to have this case transferred to the juvenile court of Lamar County but no order was ever entered in response to this petition. It was the duty of the court to have made a careful investigation of the case on hearing the petition to transfer said cause to the juvenile court and he should have so transferred same and ordered the criminal charges dismissed as provided for under Section 7204, for the reason that while said Section 7203 provides that a child under 18 years of age who is charged with commission of misdemeanor may be proceeded against in a criminal court as other persons, yet it provides that, "No child under 18 years of age shall be so prosecuted without such order being first so entered."

In order that a defendant may have a fair trial when he is being tried on a felony charge, the record and minutes of the court shall show that the defendant was present during every stage of the trial and this cannot be waived by his counsel. This was not done in this case. The record shows that the defendant was not present, or rather fails to show that he was present when the petition was offered to transfer said cause to the juvenile court, and for this error the case should be reversed.

The instructions granted the State were very prejudicial to the appellant and were predicted on facts that did not exist and on proof that had not been made, in this, to-wit: (a) There is no proof in the record that a deadly weapon had been used. No weapon was introduced in evidence, and no doctor or expert witness was introduced to show that the wound had been made by a deadly weapon, and it being true there was nothing on which to infer malice aforethought. (b) The State had no evidence on which to predicate that premeditated design that is necessary in such a case (Ross v. State, 185 Miss. 438, 188 So. 296), therefore the State's instruction was erroneous and constitutes reversible error, one of them being almost exactly as the one that was condemned in the Ross case as to malice aforethought. Then in its second instruction the State uses the term "dangerous weapon," which is borrowed from the manslaughter statute, and not from our murder statutes, and this instruction is not responsive to the facts and in keeping with the indictment and departs from the allegations therein, because the defendant is under indictment for attempting to murder the State witness with a certain deadly weapon, to-wit: a knife, and now this instruction begs the jury to find him guilty if he used a dangerous weapon of any kind, knowing that it had failed to prove a knife was a deadly weapon.

At the close of the evidence for the State the defendant moved for a directed verdict which should have been sustained for the following reasons: (a) because at most the appellant could not have been guilty of more than a misdemeanor, and if so, under Section 7203, Code of 1942, the court could not hear and determine that without same first being authorized by the juvenile court, or dismiss same as authorized under Section 7204, Code of 1942; (b) no deadly weapon having been shown in the hands of the appellant, and therefore no threats having been proven, and there being no conflict in the evidence that the State witness, Joe Williams, was the aggressor and assailant, and the provoker of said difficulty, and that he was not mortally wounded, and no witness had testified that the wound or wounds made were made by a deadly weapon, therefore no malice aforethought could be imputed; and (c) no premeditated design was shown or could be inferred from the evidence; and (d) corpus delicti must be established by evidence (Taylor v. State, 108 Miss. 18, 66 So. 321). Therefore, if death had resulted it would have either been manslaughter or justified homicide under the law of self-defense. Section 2226, Code of 1942, being one of our manslaughter statutes, provides that "the killing of another in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense shall be manslaughter."

King v. State, 185 Miss. 433, 188 So. 554; Gipson v. State, 38 Miss. 295; Hairston v. State, 54 Miss. 689; Wood v. State, 64 Miss. 761, 2 So. 247; Ex parte Burden, 92 Miss. 14, 45 So. 1.

The defendant asks the court for an instruction to the effect that the defendant could not be found guilty as charged, that is to say, that the defendant in the court below under the law as we see it could not have been guilty and should not have been permitted to stand charged before the jury with anything greater than simple assault and battery, and the court below erred in refusing to grant this instruction, for there was no felonious intent shown, no threats, no deadly weapon shown by proof, and the evidence failed to show that appellant was the aggressor, but Williams was shown to be, and therefore the intent necessary to raise the charge from a misdemeanor to a felony was lacking.

Hairston v. State, supra; Jeff v. State, 37 Miss. 321, 39 Miss. 593; Toler v. State, 143 Miss. 96, 108 So. 443; Norwood v. State, 182 Miss. 898, 183 So. 523.

The use of a deadly weapon is prima facie evidence of intent to kill, but not conclusive as held in Jeff v. State, supra, but in the case at bar there was no proof that a deadly weapon was used by appellant, and while the question of what is a deadly weapon, except those so defined by statute, is a question for the jury on competent evidence, and a pocket knife might be, it appears, from evidence in the case of Saffold v. State, 76 Miss. 258, 24 So. 314, but that was a case where a doctor gave evidence about the wounds and the knife was offered in evidence before the jury. In the case of State v. Sims, 80 Miss. 381, 31 So. 907, the court said that a brick might be found to be a deadly weapon, when "laid before the jury," together with the manner of its use, would enable the jury to determine if it was a deadly weapon or not. In the case at bar no knife was laid before the jury and nothing except the indictment which charged a "deadly weapon, to-wit a knife," was even mentioned by anyone else, and the jury had no proof as required in the Sims case of use of deadly weapon, and therefore it was error for the trial court to refuse to grant appellant this instruction.

Non expert witness who had opportunity of knowing, and observing the conversation, conduct and manners of a person whose sanity is in question may depose not only as to facts, but his opinion or belief formed from his actual observation, as to sanity or insanity of such person."

Reed v. State, 62 Miss. 405; Wood v. State, 58 Miss. 741; Bacot v. State, 96 Miss. 125, 50 So. 500; Bishop v. State, 96 Miss. 846, 52 So. 21; Brummett v. State (Miss.), 181 So. 323.

Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.

A motion is at issue without further pleading, and the movant must, to sustain his motion, introduce proof on such issue.

Reed v. State, 143 Miss. 686, 109 So. 715.

The circuit judge did not err in failing to enter the order to transfer the case involved here, a felony, to the juvenile court of which he was a presiding judge.

Montross v. State, 61 Miss. 429; Holberg v. Macon, 55 Miss. 112; Bell v. West Point, 51 Miss. 262; Whitney v. Bank of Greenville, 71 Miss. 1009, 15 So. 33; Lewis v. State, 201 Miss. 48, 28 So.2d 122; Henry v. State, 87 Miss. 1, 88 Miss. 843, 39 So. 856; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152; Code of 1942, Secs. 2608, 2609, 7185-7213; Constitution of 1890, Secs. 24, 124, 144, 156, 171, 172, 173; Laws of 1946, Ch. 207.