HUGHES v. STATE

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Docket Number

No. 37313.

Judges

Alexander, J., (specially concurring).
Hall, J.

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HUGHES v. STATE.

Brown Elledge, for appellant.

I. The indictment charged no crime.

The indictment charged no crime against the laws of Mississippi for the reason that it was not therein charged that the alleged victim of the assault, Floyd Griffin, was a human being. Rowland v. State, 182 Miss. 886, 183 So. 527 (1938); Secs. 689, 2011 and 2215, Code 1942.

II. The peremptory instruction should have been granted.

At the conclusion of the evidence for the State the defendant moved the court to exclude the testimony offered by the State and direct a verdict of not guilty. The indictment in this case charged an assault and battery with intent to kill Floyd Griffin. All the evidence introduced by the State shows that the assault was made upon Floyd Griffie.

Nowhere in the record is there any proof of an assault and battery upon Floyd Griffin, with intent to kill Floyd Griffin.

The word "Griffin" with the heavy nasal sound of "n" and the word "Griffie" with the soft vowel sounds predominating, are not idem sonans. Thus the indictment charges an attack upon Griffin and the proof shows an attack upon one Griffie. Upon the coming in of the evidence it was the duty of the State, if it saw proper so to do, to amend the affidavit in this respect. The State failed to amend the affidavit. McDaniels v. State, 203 Miss. 239, 33 So.2d 785 (1948); Johnson v. State, 186 Miss. 405, 191 So. 127.

III. It was reversible error in injecting the liquor question in the record.

In the absence of some connecting link between drunkenness and the difficulty it was prejudicial error on the part of the State to throw into the jury box the liquor question. In counties like Itawamba County the liquor question thrown at the jury in such manner is prejudicial to the highest degree and this case should, in our judgment be reversed on that ground alone. See Huddleston v. State, 134 Miss. 382, 98 So. 839.

IV. The instructions for the State constitute reversible error.

The court granted two instructions for the State which, in the order in which they appear in the transcript, are as follows: "The Court instructs the Jury for the State that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon."

"The Court instructs the jury for the State that if you believe from the evidence in this case beyond a reasonable doubt that the defendant Guy T. Hughes wilfully and unlawfully assaulted Floyd Griffie with a deadly weapon, to-wit: a knife, and wilfully, unlawfully and feloniously cut and wounded him, not in necessary self-defense, of his malice aforethought and without deliberate design to effect the death of Floyd Griffie, at the time and place and in the manner and form as charged in the indictment, then it is your sworn duty to return a verdict of guilty as charged."

In the first instruction the jury was told that "malice aforethought mentioned in the indictment" may be presumed from the unlawful and deliberate use of a deadly weapon. The entire case was before the jury. The prosecuting witness and his wife gave in very great detail all the facts and circumstances leading up to and surrounding the difficulty. In addition to the minute details of facts and circumstances testified to by Floyd Griffie and his wife Fay Griffie the State also by witnesses Orear, Reese and Moses painted into the picture numerous other facts and circumstances so that from the testimony of the five witnesses, on both direct and cross-examination, it may confidently be argued that every fact and circumstance of any moment whatsoever was before the jury.

When the entire case is before the jury there is no need nor right to charge them upon a presumption. When the facts and circumstances are in evidence presumptions vanish. This proposition of law, in its application to the case at bar, is well-settled and requires little or no authority for its support. See Bridges v. State, 197 Miss. 527, 19 So.2d 738.

The second instruction, and also the two instructions taken and considered together, conclusively informed the jury that the knife in question was a deadly weapon, thus invading the province of the jury since all facts and circumstances surrounding the difficulty were in evidence.

The second instruction is open to the further objection that it does not clearly inform the jury what facts they, as a jury, would be required to find in order to return a verdict of guilty.

We confidently submit to the court that the instructions for the State, as a whole, containing as they do obvious errors and obvious confusions, did not properly instruct the jury and constitute prejudicial and reversible error. The prejudice is too great to be neutralized by defendant's instructions.

Under the authority of Bridges v. State, supra, on the basis of this record, we are left to inquire whether guilt is so patent that such errors would not require reversal. We felt at the time that, at most, this was a case of aggravated assault. It is apparent from an examination of the testimony of the prosecuting witness, Floyd Griffie, and also that of his wife, that if Guy Hughes had intended to kill and murder Floyd Griffie there was nothing to prevent his having carried out that purpose and intent. We submit that Guy Hughes had no intent whatever to kill and murder Floyd Griffie, and that the facts and physical circumstances so show. But under the instructions given to the jury we were handicapped in arguing that question. The defendant had every opportunity in the world to kill Floyd Griffie. An examination of histories of crimes where the victim is attacked from the rear indicates that death of the victim almost invariably results from such an attack usually inflicted in a vital position of the victim's body. But what do we have here? The first injury, inflicted when Guy Hughes had the utmost opportunity to kill, was a slight flesh wound on the shoulder; and the second injury resulted in a still minor wound in the hip.

Joe T. Patterson, Assistant Attorney General, for appellee.

The first point argued in appellant's brief is that — "The indictment charged no crime."

The indictment in the case at bar is under Section 2011, Mississippi Code 1942, and a reading of the indictment clearly shows that the offense charged is substantially set forth in the language of the statute and meets all of the requirements for such an indictment as held by this court in Word v. State, 180 Miss. 883, 178 So. 821. In this case the same question was raised as is presented in the case at bar and this court, quoting from State v. Snowden, 164 Miss. 613, 145 So. 622, said: — "The formal and technical words of the statute are dispensable in an indictment. If the offense charged is certainly and substantially described in language equivalent in meaning to the language of the statute, it is sufficient."

This court, in the case of State v. Needham, 182 Miss. 663, 180 So. 786, 116 A.L.R. 1100, in the syllabus, held: — "Constitutional provision entitling defendant to demand the nature and cause of the accusation against him only secures to the defendant the right to be advised of the nature of the charge against him, and not the right to have set forth in the indictment the facts relied on to sustain the charge", and further in the syllabus — "Generally a charge is sufficient if it adopts and follows the language of the statute or is in language substantially equivalent thereto, and the court is enabled to see therefrom on what statute the charge is founded."

Appellant next argues that — "The peremptory instruction should have been granted".

The appellant argues that the motion to exclude and for a peremptory charge should have been granted for the reason that the indictment charged an assault and battery with intent to kill Floyd Griffin when, in fact, the evidence shows that the assault was made upon Floyd Griffie. It is obvious that this is a typographical or clerical error. This court, many years ago, in passing on this same question, in the case of Greeson v. State, 5 How. 33, stated — "It is lastly objected that the indictment is repugnant in the description of the offense. It is too evident to require argument that the use of the name Robert in one clause of the indictment instead of Richard Gaines, was a mere clerical mistake of the draftsman. It could not prejudice the defendant and if that member of the sentence in the indictment were stricken out it would appear yet very manifest that the bank bills are laid to be the property of Richard Gaines." A reading of the record in the case at bar leaves no doubt as to the fact that the person assaulted was Griffie and not Griffin, and no harm has been done the appellant by this clerical or typographical error.

The appellant next argues that — "It was reversible error in injecting the liquor question in the record".

This proof was permissible in behalf of the State as it tended to show the condition of the appellant, and could also throw light on the frame of mind of the appellant at the very time the crime was committed. Huddleston v. State, 134 Miss. 382, 98 So. 839.

It is next argued by the appellant that — "The instructions for the State constitute reversible error".

The first instruction "instructs the jury for the State that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon."

From the record in the case at bar this instruction was justified. It is admitted that in certain cases this instruction has been held to be reversible error, as in the case of Walker v. State, 146 Miss. 510, 112 So. 673. In the case at bar there is no proof to raise an issue before the jury as to whether the cutting was maliciously and deliberately done. The only proof in this case is that of the prosecuting witness and his wife, and their testimony is positively to the effect that the assault was wilfully, maliciously and deliberately done.

The second instruction for the State clearly states the principle of law governing such cases. A similar instruction was upheld by this court in Word v. State, supra.

The case at bar is very similar to the case of Bridges v. State, 197 Miss. 527, 19 So.2d 738, and we think that the same might be said of the instructions in the case at bar as was said in the Bridges case, supra; however, we think that the holding in the Bridges case might also be said in this case wherein the court stated — "In a case where guilt is less patent such error would require reversal. However, the evidence is overwhelming that the assault was unprovoked and wholly unjustified and no impartial jury with capacity to think and courage to act could reasonably find otherwise. The record itself discloses that the assault was made with a deadly weapon with a deliberate and expressed intent to kill and murder."

1. Indictment — victim of offense named — averment that he was a human being not necessary.

When in an indictment the victim of the offense is named, it is not necessary to aver that he is a human being.

2. Indictment — name of victim of offense — variance.

An indictment must state the name of the victim of an offense where that is an element of the offense, and the failure to state it, or a material variance between statement and proof, is fatal.

3. Indictment — variance — name of victim of offense.

When an indictment named Floyd Griffin as the victim of the offense, while the proof showed that the victim's name is Floyd Griffie, the variance was so slight as to be immaterial and the accused could not have been misled thereby.

4. Criminal procedure — variance as to name of victim of offense.

When the defendant on the trial failed to object to testimony and made no motion to exclude it on the ground that there was a variance between the indictment and proof as regards the name of the victim of the offense, and when if he had seasonably objected the indictment might have been amended, he will not be heard to raise the question for the first time on appeal.

5. Criminal procedure — homicide — trial — evidence of defendant's state of drunkenness or sobriety.

In a prosecution for assault and battery with intent to murder, where there is no evidence of any provocation or reason for the attack made by the defendant, evidence of his sobriety or drunkenness is admissible for the purpose of showing his state of mind at the time of the attack.

6. Criminal procedure — when the guilt of the defendant is patent — when no reversal for error.

When in a prosecution for assault and battery with intent to murder the guilt of the defendant under all the evidence is patent, there will be no reversal on account of error, if error, in the admission of testimony that at the time liquor could be smelled on his breath.

7. Criminal procedure — homicide — presumption of malice.

The presumption of malice which arises from the killing of a human being by the unlawful and deliberate use of a deadly weapon will prevail and characterize the act as murder unless the facts in evidence change the character of the killing by showing either justification or necessity.

8. Criminal procedure — homicide — presumption — use of deadly weapon.

Where all the facts are in evidence presumptions disappear, and in such a case it is error to grant an instruction that malice may be presumed from the unlawful and deliberate use of a deadly weapon; but where the facts are not all in evidence and no evidence whatever was produced tending to show either justification or necessity for the assault with such a weapon, the presumption of malice instruction may be given.

9. Criminal procedure — homicide — instruction on presumption of malice.

When the defendant in a prosecution for assault and battery with intent to murder, procured instructions that the burden was upon the State to prove malice aforethought beyond every reasonable doubt and to the exclusion of every reasonable hypothesis, and when there was no evidence tending to show either justification or necessity for the assault as made, an instruction by the State that malice aforethought may be presumed from the unlawful and deliberate use of a deadly weapon was appropriate and proper.

10. Criminal law — homicide — actual malice.

Actual malice is not a necessary ingredient of murder — all the statute requires is deliberate design. Sec. 2215, Code 1942.

Headnotes as approved by Hall, J.

Hall, J.

Upon an indictment charging an assault and battery with intent to kill and murder, the appellant was convicted and sentenced to three years in the state penitentiary, from which he appeals.

The record shows without dispute that appellant committed an unwarranted assault upon Floyd Griffie by cutting him in the back with a pocket knife and by further cutting him in the hip, the wounds being of such severity as to require fourteen stitches.

The first assignment of error is that the indictment fails to charge that the victim was a human being. This point was raised by a demurrer which was overruled. We have not been cited any Mississippi case deciding this question. It was raised in Rowland v. State, 182 Miss. 886, 183 So. 527, but the court held that the question was not properly preserved for review because no demurrer to the indictment had been filed. In that case, however, this court foreshadowed what it would probably hold, when it said: "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 have examined the cited authorities and in our judgment they are sound. (Hn 1) The well-recognized rule is that the use of the victim's name in an indictment implies that he is a human being. Merrick v. State, 63 Ind. 327; Porter v. State, 173 Ind. 694, 91 N.E. 340; State v. Stanley, 33 Iowa 526; Reed v. State, 16 Ark. 499; Perryman v. State, 36 Tex. 321; Bohannon v. State, 14 Tex. App. 271[ 14 Tex.Crim. 271]; Ringo v. State, 54 Tex.Crim. R., 114 S.W. 119; Sutherland v. State, 121 Ga. 591, 49 S.E. 781; State v. Day, 4 Wn. 104, 29 P. 984; Cremar v. People, 30 Colo. 363, 70 P. 415; People v. Gilbert, 199 N.Y. 10, 92 N.E. 85, 20 Am. Cas. 769; People v. Vaughn, 14 Cal.App. 201, 111 P. 620. We, therefore, find no merit in this assignment.

It is next contended that appellant was entitled to a peremptory instruction because the indictment alleged that the offense was committed against Floyd Griffin while the proof showed that the victim's name is Floyd Griffie. The rule is that (Hn 2) "an indictment must state the name of the victim of an offense where that is an element of the offense, and a failure to state it, or a material variance between statement and proof is fatal, but an immaterial variance is not." 27 Am. Jur., Indictments and Informations, Sec. 183, p. 728. (Hn 3) In our opinion the variance in this case was so slight that it is immaterial and the appellant could not have been misled thereby. People v. Gormach, 302 Ill. 332, 134 N.E. 756, 29 A.L.R. 1120; Foreman v. State, 186 Miss. 529, 191 So. 657; McDaniels v. State, 203 Miss. 239, 33 So.2d 785; Bowers v. State, 145 Miss. 832, 111 So. 301. Furthermore appellant's motion for a directed verdict sets out several grounds as the basis therefor but (Hn 4) nowhere is there any showing in the record that there was any objection to the testimony or motion to exclude upon the ground of variance between the indictment and proof. If such a question had been raised in the trial court the indictment could have been amended, and it is too late for appellant to raise the question for the first time on appeal. McDaniels v. State, supra.

(Hn 5) The sheriff testified without objection that upon arresting appellant shortly after the difficulty he smelled liquor on appellant's breath. The deputy sheriff testified to the same effect over the objection of appellant, and the admission of this testimony is assigned as error. There is nothing whatever in the record here to show any provocation or reason for appellant's act in attacking Griffie. In Huddleston v. State, 134 Miss. 382, 98 So. 839, 841, this Court said, "The defendant's state of drunkenness or sobriety might be very persuasive in determining whether purposely he did the act or not, and also as showing his state of mind." We think the evidence was admissible at least for the purpose of showing appellant's state of mind at the time of the attack, since no motive therefor is in evidence. (Hn 6) At any rate, its admission, if error, was not so prejudicial as to require a reversal where guilt is so patent as in this case. Bridges v. State, 197 Miss. 527, 19 So.2d 738, and authorities therein cited.

The last assignment is directed against two instructions which were granted to the state. The first is that malice aforethought "may be presumed from the unlawful and deliberate use of a deadly weapon." It will be noted that this instruction is not that "malice is implied by law" as condemned in Bridges v. State, 197 Miss. 527, 19 So.2d 738, nor that proof of the deliberate use of a deadly weapon "is prima facie evidence of an intent to kill" as condemned in Busby v. State, 177 Miss. 68, 170 So. 140, 143. In the case of Durr v. State, 175 Miss. 797, 168 So. 65, 68, this court said: (Hn 7) "The presumption of malice which arises from the killing of a human being with a deadly weapon will prevail and characterize the act as murder, unless the facts in evidence change the character of the killing by showing either justification or necessity". To the same effect are the cases of Crockerham v. State, 202 Miss. 25, 30 So.2d 417, and Bennett v. State, 152 Miss. 728, 120 So. 837. Appellant relies upon the principle announced in many decisions of this court that (Hn 8) where the facts are all in evidence presumptions disappear and that it is improper to grant such an instruction in such cases. However, the facts are not all in evidence here, and the appellant did not produce any evidence whatever tending to show either justification or necessity for the assault; consequently the granting of the instruction in this case is not error. (Hn 9) Furthermore the appellant obtained three instructions which charged the jury that the burden was upon the state to prove malice aforethought beyond every reasonable doubt and to the exclusion of every reasonable hypothesis and that the appellant at the time of the assault intended to kill and murder his victim and the jury was charged that unless they so believed from the evidence they could not convict appellant of the offense charged; in view of these instructions for the defendant we think that the first instruction for the state was appropriate and proper upon the record here presented. In this connection we call attention to the fact that appellant's instructions were much more favorable to him than the law of this state justifies. In Criss v. State, 202 Miss. 184, 30 So.2d 613, 614, which is one of the last pronouncements of this court on the subject, it was said: (Hn 10) "Actual malice is not a necessary ingredient of murder. All our statute requires in cases of this kind is a `deliberate design.' Code 1942, Section 2215."

The second instruction of which appellant complains is substantially the same as the one which this court approved in Word v. State, 180 Miss. 883, 178 So. 821, and we find no prejudicial error therein.

The judgment of the lower court is therefore affirmed.

Affirmed.

Alexander, J., (specially concurring).

I concur in the result reached. I am unable, however, to assent to the view that the giving of the instruction for the State was proper. Its allowance on the ground that the instructions for the defendant required a finding of malice aforethought may disavow any purpose to approve the instruction in every case. For all we know the instructions of the defendant may have been incited by the allowance of the State's instruction. I am of the view that this assignment should be disposed of as in Bridges v. State, 197 Miss. 527, 19 So.2d 738. Deductions from the deliberate use of a deadly weapon are at most mere inferences. Busby v. State, 177 Miss. 68, 170 So. 140. To instruct a jury that they may infer one fact from another is argumentative and upon the weight of the evidence. I am of the opinion that the ultimate elimination of the use of the mythical and misleading term "malice" would be more readily attained by a continuing disapproval of such instructions, and that its use in the instant case could be likewise condemned without necessarily effecting a reversal. Bridges v. State, supra.

HUGHES v. STATE.

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