EDWARDS v. STATE

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Docket Number

No. 33091.

Attorney(S)

Earle L. Wingo, of Hattiesburg, for appellant. We desire to submit to the court the fact that nowhere in the history of cases in Mississippi do we find a case similar to or identical with the case against the appellant; in other words, we do not find a previous case wherein one was charged with the crime of assault and battery with intent to kill and murder when such alleged crime consisted of shoving an individual from a swiftly moving automobile. It becomes necessary to refer to Section 787 of the Mississippi Code of 1930 to determine that which constitutes, under the law, the crime of assault and battery with intent to kill and murder. It will be noted that under this section of the code defining this particular crime, the assault and battery with intent to kill and murder must be an assault involving the use either of deadly weapons or other means or force likely to produce death. Our court has upon numerous occasions held that the use of a deadly weapon carries with it proof of the intent to commit the crime of assault and battery with the intent to kill and murder. Jeff v. State, 37 Miss. 321. And as to what constitutes a deadly weapon is always a question of fact for the jury. Stafford v. State, 76 Miss. 258; State v. Simms, 80 Miss. 381. Our court has likewise held that where the charge is an assault and battery with intent to kill and murder, and the State does not rely upon the alleged use of a deadly weapon, but relies upon the proposition that there was involved other means or force likely to produce death, that the indictment should allege and the proof should show with the same particularity the element or instrument employed which, of itself, was likely to produce death. It will be borne in mind that in the case at bar, this indictment is predicated upon the proposition that the instrument or force used, which was likely to produce death, was an automobile traveling at a high rate of speed, from which the prosecuting witness was shoved. The indictment is silent as to the rate of speed of the automobile, and the indictment fails to sufficiently allege that which would constitute the employment of a force or means likely to produce death. Ainsworth v. State, 5 How. 243. We submit that where the facts alleged in the indictment are relied upon to substantiate the charge, the indictment must have alleged that the facts set forth therein were such force as was likely to produce death; in other words, the indictment should have charged, not only that the appellant wilfully, unlawfully and feloniously and of his malice aforethought shoved said Fuller from the automobile then and there traveling at a high rate of speed, but should have, in addition thereto, alleged that such act was the use of such force as would likely produce death. W.D. Conn, Jr., Assistant Attorney-General, for the State. It is said here that the indictment is bad because it did not charge that the means used to commit the assault and battery was likely to produce death to conform to the statute defining an assault and battery with intent to kill and murder. The grounds of the demurrer are: 1. The indictment is wholly insufficient in law to charge the crime of assault and battery with intent to kill and murder. 2. The indictment alleges no crime known to law. 3. The indictment is insufficient and ambiguous and is a conclusion of the pleader with respect to the crime sought to be charged. We submit that this demurrer is, in fact, no demurrer at all. A demurrer must be specific and must specifically point out the defect in the indictment. It is necessary that this be done, not only in order to play fair with the trial court, but that the parties may be held on review to the same questions and matters which were litigated in the trial court. The demurrer in this case does not comply with the fixed rules in this respect. State v. Butterfield Lbr. Co., 103 Miss. 286, 60 So. 322; Wampold v. State, 170 Miss. 732, 155 So. 350. This rule, with reference to demurrers, is in line with the rule relating to objections to evidence. Jackson v. State, 163 Miss. 235, 140 So. 683. The indictment in this case does not state conclusions, but charges the acts which were done with the requisite intent which raises the grade of the offense to that of a felony. Pleading that the assault was made "with means or force likely to produce death" would be pleading a conclusion of fact and would be demurrable. The indictment was good as drawn. Nothing in the Ainsworth case, relied on by appellant, is in conflict with the foregoing. The indictment carried out the injunction or admonition of the court in that case.

Judges

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

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EDWARDS v. STATE.

1. AUTOMOBILES.

An indictment charging that defendant and another assaulted designated person by pushing him from an automobile traveling at a high rate of speed by opening automobile door to which such person was holding, with intent to kill such person, was sufficient as against general demurrer.

2. INDICTMENT AND INFORMATION.

The grounds of demurrer to an indictment must be specific and must definitely point out the particular defect which is challenged and in such manner as to advise the court of the exact point relied on.

3. INDICTMENT AND INFORMATION.

A demurrer to indictment charging assault with intent to kill by pushing designated person from automobile traveling at a high rate of speed, assigning grounds that indictment was insufficient to charge crime of assault and battery with intent to murder or any crime and was insufficient and ambiguous and was a conclusion of pleader, was insufficient to support argument that indictment did not charge that means or force used was likely to produce death.

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

Omitting the formal parts, the indictment charges against appellant, and another, that they "did then and there, wilfully, unlawfully, feloniously and of their malice aforethought assault and wound Leon Fuller, a human being, by then and there wilfully, unlawfully, feloniously and of their malice aforethought shoving the said Fuller from an automobile then and there traveling at a high rate of speed by then and there opening a door of said automobile to which the said Fuller was holding, with the unlawful, felonious intent and of their malice aforethought the said Fuller to kill and murder."

Appellant demurred to the indictment, assigning the following grounds, omitting the formal parts:

"1. The indictment is wholly insufficient in law to charge the crime of assault and battery with intent to murder.

"2. The indictment alleges no crime known to law.

"3. The indictment is insufficient and ambiguous, and is a conclusion of the pleader with respect to the crime sought to be charged."

Appellant complains that the indictment does not charge that the means or force used was likely to produce death; that the indictment should have charged not only that the appellant willfully, unlawfully, feloniously, and of his malice aforethought shoved said Fuller from the automobile then and there traveling at a high rate of speed, but, in addition thereto, should have alleged that such act was the use of such force as would likely produce death.

Under our criminal procedure, an indictment which contains as much of substance as the one here before us is not subject to a demurrer which is general in its terms. The grounds of demurrer must be specific and must definitely point out the particular defect which is challenged and in such manner as to advise the court of the exact point relied upon. State v. Lumber Co., 103 Miss. 286, 60 So. 322. It is obvious that the quoted demurrer does not conform to the rule, therefore it is ineffective to support the argument which appellant has made, or any other along similar lines.

We have examined the other assignments, as well as the entire record of the evidence. We are of the opinion that there is no reversible error.

Affirmed.

EDWARDS v. STATE.

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