Summary
In Griffen v. State, 196 Miss. 528, 18 So.2d 437, Griffen had struck Cotten in the temple with a closed knife, about the size of the thumb, as a result of which the victim was unconscious for twenty-five or thirty minutes. It was the opinion of the doctor that it would be possible for a pretty strong man, by the use of "a pretty good size knife" and by hitting another man in the temple, to produce death.
Summary of this case from Gray v. StateOpinion
No. 35551.
June 5, 1944.
1. ASSAULT AND BATTERY. Homicide.
An assailant is guilty only of assault and battery, rather than assault with intent to murder, when he deliberately uses a weapon capable of producing death when employed in the usual manner, but in such fashion as would not ordinarily be calculated to produce death.
2. HOMICIDE.
Where defendant struck another with a closed pocket knife, though he had opportunity to open the knife and use it to kill defendant could be convicted of assault and battery only, since intent to kill and murder was negatived.
3. HOMICIDE.
Where reviewing court affirmed conviction of assault and battery with intent to kill and murder, for the constituent offense of assault and battery only, and remanded for resentence, only failure of instruction to mention intent to kill and murder was not prejudicial.
APPEAL from the circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
Jas. F. Noble, of Brookhaven, for appellant.
It is appellant's contention that the verdict of the jury is not supported by the evidence in this case; that the evidence offered by the state does not prove beyond a reasonable doubt that appellant struck Cotten with intent to kill and murder him; that the verdict of the jury is against the weight of the evidence and that under the evidence in this case appellant could not be rightfully convicted of anything more than simple assault and battery.
Appellant contends in this case that the main instruction given by the court to the state was and is fatally erroneous, constituting reversible error, in that it failed to embrace the hypothesis that the appellant intended to kill Curtis Cotten, and the other instruction given the state says nothing whatever as to intent to kill on part of appellant. I say that this case must be reversed because of this erroneous instruction.
Herring v. State, 134 Miss. 505, 99 So. 270.
The gist of the offense here charged is the felonious intent to kill. It is this intent to kill that raises the grade of the offense from a misdemeanor to a felony. Now it may be that appellant was not justified in striking Curtis Cotten, but he did not intend to kill him. I submit in all seriousness that for the errors complained of the case must be reversed and remanded for another trial.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The appellant assigns as error an instruction given on the part of the state and that the evidence on the part of the state was not sufficient to support a verdict of more than a simple assault and battery.
The appellant's criticism of the instruction is well taken, as held in the recent case of Daniels v. State, 196 Miss. 328, 17 So.2d 793. Therefore, it follows that if this instruction is not cured or supplemented by an instruction granted the appellant, then this conviction cannot be upheld unless it be for a simple assault, as was done in the Daniels case. The appellant obtained an instruction which is as follows: "The Court instructs the jury for the Defendant that unless the jury believe beyond a reasonable doubt from the evidence that the Defendant wilfully, unlawfully, feloniously and with malice aforethought did assault, strike, bruise and wound Curtis Cotten, Sr., a human being, with a certain deadly weapon to-wit: a large pocket knife with the felonious intent and of his malice aforethought, him the said Curtis Cotten, Sr., wilfully, unlawfully and feloniously to kill and murder, then it is your sworn duty to bring out verdict of not guilty." Therefore, it can be seen that this instruction embraces all of the elements of an assault and battery with an intent to kill and murder and when considered as supplementing the instruction granted the state, the jury could not have been misled.
All the instructions for both the state and appellant must be read together, and, when so considered, if they make a consistent whole and correctly state the applicable principles of law, any minor errors in one or more of them, which are reconcilable, are harmless.
Williams v. State, 160 Miss. 485, 135 So. 210; Temple v. State, 165 Miss. 798, 145 So. 749; Carter v. State, 169 Miss. 285, 152 So. 876; Holmes v. States, 192 Miss. 54, 4 So.2d 540.
As to the sufficiency of the evidence here to support a verdict of an intent to kill and murder, the prosecuting witness testified, as well as other witnesses, that when he was struck by the appellant he fell on the concrete, striking it with his head, and, from the lick and the resulting fall, he was rendered unconscious for a period of thirty minutes and, upon examination being made by Dr. Mullins, there was found evidence of a brain concussion which, as a matter of common knowledge, could easily have caused death. However, these questions, as to whether the instruction obtained by the state was cured by one obtained by the appellant, and the sufficiency of the evidence as to supporting a verdict of an assault and battery with intent to kill and murder, are submitted to the court.
The appellant, Buster Griffen, was convicted of assault and battery with intent to kill and murder one Curtis Cotten, Sr., at the latter's place of business, where he operated a restaurant for colored people in the city of Brookhaven. According to the proof on behalf of the state, the defendant occupied a seat in the restaurant for some time without asking to be served, and to the exclusion of customers who desired service. Upon being requested to move so as to permit those to be seated who desired to eat, the defendant became angry, and began cursing the operator. Someone intervened, and pushed the defendant out of the door. Some few minutes later it became necessary for the said Curtis Cotten, Sr., as the operator of the restaurant, to go outside to purchase some meat at a nearby market. When he went out of the door the defendant was standing on the curb of the sidewalk, where he "blocked" the said Cotten "from going up the street." The defendant then struck him on the side of the head, in the temple, with a closed pocket-knife, and which the said prosecuting witness described as being "about the size of my thumb," exhibiting his thumb to the jury. The said Cotten was caused to fall to the sidewalk, and thereafter remained unconscious for approximately 25 or 30 minutes. A physician testified for the state that he had been struck with a blunt instrument of some kind; that it was not a cut, but a break in the skin, and that the victim was not quite rational when he got to him. This physician further testified that in his opinion it would be "possible" for a pretty strong man to hit another in the temple of the head, where this man was struck, in such manner as to produce death, if the assailant was using "a pretty good size knife." The prosecuting witness, who was the only one who undertook to describe the means used by the defendant, finally did state that the knife was of "medium" size, whereas the indictment charged that the defendant assaulted the said Curtis Cotten, Sr., "with a certain deadly weapon, to wit, a large pocket knife with the felonious intent and of his malice aforethought, him the aforesaid Curtis Cotten, Sr., wilfully, unlawfully and feloniously to kill and murder." However, the jury had an opportunity to determine its size by comparison with the exhibited thumb of the witness.
It should be noted, however, that it was disclosed by the testimony that the defendant had been afforded ample opportunity to open the knife, and to deliberately use it as a deadly weapon in such manner as to kill and murder his victim, if he had intended to do so. Thus, the question arises as to whether or not an assailant is guilty only of an assault and battery when he deliberately uses a weapon capable of producing death when employed in the usual manner for that purpose, but in such fashion as would not ordinarily be calclated to produce such result. We are of the opinion that this question must be answered in the affirmative. The facts relied on by the state in the instant case to show an intent to kill and murder are such as to wholly negative such intent, rather than to prove the same.
In this situation, the state obtained an instruction to the jury which omitted the necessary requirement that the assault and battery must have been committed "with intent to kill and murder," before the defendant could be found guilty as charged. But since we have concluded to affirm the conviction for the constituent offense of assault and battery, and to remand the case for the purpose only of allowing a sentence to be imposed accordingly, the appellant will not be prejudiced by the omission of these words from this instruction. Therefore, we will not reverse the case on account thereof.
Affirmed and remanded.