Opinion
No. 32734.
January 3, 1938. Suggestion of Error Overruled January 31, 1938.
1. ASSAULT AND BATTERY.
Evidence that accused beat another with stick while accused's companion held gun on victim supported conviction for violation of statute prohibiting beating another with stick while in possession of deadly weapon with intent to intimidate such other, as against contention accused must himself possess deadly weapon, since accused's companion was clearly guilty, and accused was a "principal" (Code 1930, section 788).
2. CRIMINAL LAW.
Each person present, consenting to commission of offense, and doing any act which is an ingredient in the crime, or immediately connected therewith, or leading to its commission, is as much a "principal" as if he had with his own hand committed the whole offense.
APPEAL from the circuit court of Jasper county. HON. EDGAR M. LANE, Judge.
J.A. McFarland, of Bay Springs, and Welch Cooper, of Laurel, for appellant.
Appellant and G.R. Hardy were indicted under Section 788 of the Code, which provides in part as follows: "If any person assault and beat another, with a cowhide, whip, or stick, having at the time in his possession a pistol or other deadly weapon with intent to intimidate the person assaulted, and prevent him from defending himself, he shall, on conviction . . ."
It is undisputed in this case, accepting as true Windham's statement, that appellant did not strike Windham. G.R. Hardy did the striking, so swore Windham. Appellant, so says Windham, had the gun.
The statute must be strictly construed. It applies only when the person wielding the stick has the gun in his possession. There is no provision in this statute for the conviction of one holding the gun and another doing the whipping.
Appellant at the most was guilty of simple assault and battery and aiming and pointing a gun under Sections 789. These are misdemeanors and the court has ordered appellant to the penitentiary for three years.
State v. Spigener, 96 Miss. 597, 50 So. 977.
The statute was clearly aimed at the practice of "cow-hiding" people and was not aimed at the situation we have here.
This court in the case of State v. Traylor, 56 So. 521, 100 Miss. 544, in speaking of the construction of a criminal statute said: "We know of no rule of law which will justify the court in convicting a person of any crime, unless the offense comes under the letter of the statute. The law is that criminal statutes must be strictly construed."
State v. Love, 150 So. 196, 170 Miss. 666; Bishop on Statutory Crimes.
Judge Campbell in construing this statute, Sec. 788, said, in Lawson v. State, 62 Miss. 556: "The offense consists in assaulting and beating another with a cowhide, whip, or stick, having at the time in the possession of the assailant a pistol or other deadly weapon, with intent to intimidate the person assaulted."
The above opinion clearly holds that the assailant must have cowhide, whip or stick in his possession and the deadly weapon also. There can be no mistaking the effect of his language on this point. The "whipper" or assaulter or assailant must be armed with a deadly weapon, not some one else. But the undisputed facts from witnesses for the state show that Leonard Hardy, appellant here, had the gun. G.R. Hardy did the beating with a stick. But the evidence does not show that either ever had both gun and stick. In fact, it shows otherwise.
But it is said that appellant was an accessory before the fact to the crime and liable as a principal. To what crime was he an accessory? Certainly not to a violation of Section 788 because the record does not show a violation of that statute.
To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty.
16 C.J. 134; Strait v. State, 27 So. 617, 77 Miss. 693.
If it be conceded that G.R. Hardy violated Section 788 and at the time of the assault and beating had a gun or other deadly weapon in his possession, then appellant was an accessory and under our statute a principal. But G.R. Hardy only had the stick according to the State's proof. The appellant had the gun. Neither ever had both the stick and the gun at the same time. Therefore, we submit that appellant's conviction cannot be upheld on the ground that appellant was an accessory.
Russell Wright, Assistant Attorney General, for the state.
The State submits that this court will never interpret even a "cow-hiding" statute to permit two people to whip a man, one holding a gun on him and the other whipping him, when it will not permit one man to hold a gun on a person and whip him at the same time. This is an ingenious argument on the part of counsel for appellant, but the court, we confidently submit, will not follow this argument. But even if this argument should be taken as sound, we submit that it could not affect this case because the brother of the appellant, G.R. Hardy, who did the beating, was being aided in such a way by this appellant as to have made this appellant a principal.
McCoy v. State, 91 Miss. 257, 44 So. 814.
This court has held many times, and it is sound and settled law in this state, that an accessory before the fact is a principal. The statute further provides that an accessory before the fact shall be deemed and considered a principal.
Section 769, Code of 1930.
Argued orally by Ellis B. Cooper, for appellant, and by Russell Wright, for appellee.
This is an appeal from a conviction for the violation of section 788, Code 1930.
The evidence presents a case for the determination of the jury, including the credibility of the witness, Jake Windham, and no reversible error, if error at all, appears in the rulings complained of.
One contention of the appellant is that, under the State's evidence, he is not guilty of the crime defined by section 788, Code 1930, but only of a simple assault and battery. That section reads as follows: "If any person assault and beat another with a cowhide, whip, or stick, having at the time in his possession a pistol or other deadly weapon, with intent to intimidate the person assaulted, and prevent him from defending himself, he shall, on conviction, be imprisoned in the penitentiary not longer than ten years."
According to the evidence for the State, Jake Windham was on a public road when the appellant and G.R. Hardy appeared, the appellant being armed with a stick, and G.R. Hardy with a shotgun. G.R. Hardy pointed the gun at Windham and forced him to accompany the two into the woods, where he held the gun on Windham, forced him to discard his clothing, and lie down, while the appellant administered to him a severe whipping with the stick.
The appellant says that in order for the crime defined by the statute to be committed, the person who administers the whipping must, himself, have a deadly weapon in his own possession and intend therewith to intimidate the person assaulted. There may be several answers to this contention, but one sufficient, such is this: G.R. Hardy was clearly guilty of the crime defined by the statute. He had the gun in his possession, and was guilty of the actual assault made on Windham by the appellant with his assistance. The appellant participated in the commission of the crime, and is punishable as a principal therein. "Each person present consenting to the commission of the offense and doing any act which is an ingredient in the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense." Wharton on Homicide (3 Ed.), p. 49, approved in McCoy v. State, 91 Miss. 257, 267, 44 So. 814, 817.
Affirmed.