Opinion
No. 39992.
March 19, 1956.
1. Homicide — assault and battery with intent to kill and murder — evidence — supported conviction of simple assault.
In prosecution of two brothers jointly indicted for assault and battery with intent to kill and murder person who did not claim to have been struck more than once, by small wrench, and whose injuries were not serious, evidence did not sustain charge of intent to kill and murder, and would not support conviction of more than simple assault and battery.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Humphreys County; ARTHUR JORDAN, Judge.
John Sharp Holmes, Yazoo City, for appellants.
I. The indictment was drawn under Section 2011, Code of 1942, for an assault and battery with an iron wrench, with intent to kill and murder. In order for a conviction to be sustained, the following elements of the offense must be proved:
A. An assault or an assault and battery; and if based upon an assault only, there must be an overt act.
B. The use by the accused of a deadly weapon, and unless the weapon employed is a gun or a knife, or one of the other weapons defined by statute as deadly weapons, then the jury must find that the particular instrument used was, under the facts of the case, a deadly weapon.
C. That the accused perpetrated the assault or assault and battery with the intent to kill and murder. This means that the accused must have had the present intent and means to kill the person assaulted, that deliberation and malice must be present, that the said assault or assault and battery be made without justification of law and not in necessary self-defense. The act must be one which, if completed and death ensues, would be murder rather than manslaughter. Nichols v. State, 198 Miss. 822, 24 So.2d 14; Gray v. State, 220 Miss. 220, 70 So.2d 524; Markham v. State, 209 Miss. 135, 46 So.2d 88; Griffin v. State, 196 Miss. 528, 18 So.2d 437; Ex parte Burden, 92 Miss. 14, 45 So. 1; Norwood v. State, 182 Miss. 898, 183 So. 523; Walker v. State, 146 Miss. 510, 112 So. 673; Washington v. State, 222 Miss. 782, 77 So.2d 260; Toler v. State, 143 Miss. 96, 108 So. 443.
II. In order for the conviction against these defendants to stand, it is necessary that the credible evidence in the record be sufficient to show the following: an assault or assault and battery with a weapon the jury was justified in finding to be a deadly weapon under the facts of the case, the presence of deliberation and malice aforethought, that the defendants had the intent to kill, and that the defendants had the intent to murder.
III. Even though defendants committed an unlawful and felonious assault and battery upon A.G. Willoughby, with a deadly weapon, with the intent to kill, and not in necessary self-defense; still, if done in the heat of passion and without malice so that if death ensued the killing would be manslaughter, the defendants would be guilty only of assault and battery. Ex parte Burden, supra; Walker v. State, supra.
IV. The evidence introduced at the trial was insufficient to show any intent to kill on the part of the defendants.
V. The evidence introduced at the trial was insufficient to show any intent on the part of the defendants to murder.
VI. There was no sufficient credible evidence to show any assault or assault and battery by Willie Mabry, and under the instruction granted to the State no conviction of Oscar Mabry was possible without a conviction of Willie Mabry.
VII. There was no sufficient credible evidence of any intent on the part of Oscar Mabry to aid and abet Willie Mabry in an assault upon Mr. Willoughby with the intent on the part of the said Oscar Mabry to assist the said Willie Mabry to kill and murder the said Mr. Willoughby.
Collation of authorities: Burnett v. State, 192 Miss. 44, 4 So.2d 541; Nichols v. State, supra; Gray v. State, supra; Markham v. State, supra; Griffin v. State, supra; Washington v. State, supra; Crawford v. State, 223 Miss. 189, 77 So.2d 923; Alexander's Miss. Jury Instructions, Form 572.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. If no request was made in prosecution for assault and battery with intent to kill and murder, by the State or by the defendant, for instruction embodying the theory of simple assault, the Trial Judge was under no duty to give such an instruction, and his failure to do so was not error. Bland v. State, 216 Miss. 570, 63 So.2d 42.
II. It was not error to fail to give an instruction on self-defense where this issue was presented to the jury by conflicting testimony of the witnesses.
III. The evidence on behalf of the State, which the jury apparently accepted and had the right to accept, showed that the appellants intended to strike the State's witness about the head with blunt steel instruments. The fact that they stopped before completing their intention does not lessen the guilt. It has long been settled that whether the means used in the assault and battery are likely to produce death is a question for the jury. Blakely v. State, 165 Miss. 503, 144 So. 864; Blaine v. State, 196 Miss. 603, 17 So.2d 549; Boling v. State, 209 Miss. 866, 48 So.2d 581; Ceary v. State, 204 Miss. 299, 37 So.2d 316; Buggs v. State, 214 Miss. 284, 58 So.2d 792; Rogers v. State, 219 Miss. 231, 68 So.2d 105.
IV. The deliberate use of a heavy wrench and a piece of pipe clearly indicates that the felonious intent to kill and murder was present. The evidence in this case is ample and sufficient to sustain the verdict of the jury, and should be affirmed upon that point. Golden v. State, 223 Miss. 649, 78 So.2d 788.
The appellants, who are brothers and both young Negroes, were jointly indicted, tried and convicted of an assault and battery with intent to kill and murder A.G. Willoughby with two alleged deadly weapons, one being an iron wrench in the hands of Willie Mabry and the other being an iron pipe in the hands of Oscar Mabry, and they were each sentenced to serve a term of five years in the state penitentiary. The beginning of the trouble started when the two Negro boys, traveling in a pickup truck, passed an automobile driven by Willoughby's son, and in which Willoughby was riding, at a point about one and one-half miles from the Town of Isola. Willoughby testified that they passed so close as to crowd his car into a ditch, but his son, who was driving the car, testified that the car was crowded onto the shoulder of the road. The truck proceeded into the business section of Isola and parked in front of a poolroom. The Willoughby car followed it and parked across the street. Willoughby got out and went across the street and was writing down the tag number of the truck. Both of the boys got out of the cab of the truck while Willoughby was at the rear. Who started the trouble was a disputed question. Willoughby testified that Willie Mabry struck him in the mouth with a wrench and lacerated his lip and loosened one of his teeth. Before this occurred Willoughby grabbed a chair which was sitting in the body of the truck, and he was using this chair either to defend himself or to fight the Negro boys. He said that Oscar Mabry struck at him with the pipe but the blow did not touch Willoughby but, instead, it struck the chair. The injury inflicted upon Willoughby was evidently not serious as no doctor or dentist testified with reference thereto. He did not claim to have been struck but one time. The wrench was not introduced but according to the proof it was a small wrench about eight or ten inches long.
(Hn 1) The appellants contend that under the proof they should not have been convicted of assault and battery with intent to kill and murder, but at most they were guilty only of a simple assault and battery, and we think this contention is well-taken. The facts shown here do not substantiate the charge that there was any intent to kill and murder Willoughby. See Jack Lee, Alias Jack Lee Kizziah v. State, 83 So.2d 818, not yet reported in the State Reports; Gray v. State, 220 Miss. 220, 70 So.2d 524; Nichols v. State, 198 Miss. 821, 24 So.2d 14; Griffen v. State, 196 Miss. 528, 18 So.2d 437.
The judgment of conviction and sentence is reversed and the cause is remanded for a proper sentence for conviction of simple assault and battery.
Reversed and remanded.
Roberds, P.J., and Lee, Kyle and Gillespie, JJ., concur.