Opinion
No. 36048.
February 11, 1946.
CRIMINAL LAW.
In prosecution for assault and battery with intent to kill, any error in instructing jury that in the event they found certain facts, jury could find defendant guilty of injuring another by committing an assault and battery on him with a shotgun, was harmless where jury did not act on the instruction and return the verdict set forth therein but found defendant guilty as charged (Code 1942, secs. 2011, 2013).
APPEAL from the circuit court of Winston county, HON. JOHN F. ALLEN, Judge.
Neal Prisock, of Louisville, for appellant.
The court erred in granting the instruction on pointing and discharging a shotgun at and toward Will Scott.
Code of 1942, Secs. 2011, 2013.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The appellant was indicted under Section 2011 of the Code of 1942. However, the state procured an instruction as follows: "The court instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that the defendant, Bane Hudson, wilfully, unlawfully, feloniously, and intentionally did point and discharge a shotgun at and toward Will Scott and that same was not done in the discharge of official duty nor in necessary self-defense, and if you further believe from the evidence in this case beyond a reasonable doubt that the said defendant did thus injure the said Will Scott, then the defendant is guilty of assault and battery by pointing and discharging a shotgun, and this is true although the defendant in so doing had not the intention to kill and murder, and in the event you so find the form of your verdict may be: `We, the jury, find the defendant guilty of injuring Will Scott by committing an assault and battery on him with a shotgun.'" It is clear that this instruction was based on Section 2013, Code of 1942. It will also be observed that, in the above instruction, the jury was told what the form of their verdict would be in the event the defendant was found guilty. However, in addition to the above instruction, the state procured another instruction upon the form of the verdict, which is as follows: "The court instructs the jury for the State that if you believe from the evidence beyond a reasonable doubt that the defendant is guilty as charged in the indictment, then it is your sworn duty to so find, and the form of your verdict will be: `We, the jury, find the defendant guilty as charged.'" It also appears that the court, in sentencing the appellant, sentenced him for the offense of assault and battery with intent to kill and murder.
It is clear that Section 2011 and Section 2013 are distinct and separate offenses and it is clear that the appellant was indicted under Section 2011 and the jury was instructed on Section 2013. Therefore, it follows that this was confusing and the verdict could not be said to be responsive to the indictment.
Richardson v. State, 79 Miss. 289, 30 So. 650; Conwill v. State, 124 Miss. 716, 86 So. 876.
It might be said, however, that the evidence fully established beyond all reasonable doubt appellant's guilt under Section 2011 of the Code of 1942.
Of the several assignments of error only one is of sufficient substance to justify a specific response thereto.
The appellant was tried on an indictment under Section 2011, Code 1942, for assault and battery with intent to kill and murder. The court granted the state a hypothetical instruction based on Section 2013, Code 1942, which prohibits the pointing or aiming of a gun or pistol at another. This instruction, after stating the hypothetical case, concluded as follows: "And in the event you so find the form of your verdict may be: `We, the jury, find the defendant guilty of injuring Will Scott by committing an assault and battery on him with a shotgun.'" Assuming that the appellant is correct in saying that this instruction should not have been granted, no harm resulted to him therefrom for the reason the jury did not act on it and return the verdict set forth therein.
By another instruction the jury was charged: "If you believe from the evidence beyond a reasonable doubt that the defendant is guilty as charged in the indictment, then it is your sworn duty to so find, and the form of your verdict will be: `We, the Jury, find the defendant guilty as charged.'" And such was the form of the verdict rendered by the jury.
Affirmed.