Word v. State

Counsel

Mack L. Boykin, of Vaiden, for appellant. The indictment does not charge that the defendant intended to kill and murder the said Frank Heard. The specific intent to kill the person assaulted in the gist of the crime for which the defendant was apparently convicted and sentenced to the term of one year in the state penitentiary in the Circuit Court, and the felony was not charged in the indictment. The indictment leaves to speculation the person whom the defendant intended to kill, and murder, and the indictment does not state that the defendant intended to kill and murder the said Frank Heard. The charge in the indictment being left out of the indictment making the offense a felony, the indictment was but for a simple assault and battery, and the finding of the jury being "We, the jury, find the defendant guilty as charged," could only have been a finding of guilty of assault and battery. The indictment does not follow the language of the statute in and provided for in causes of assault and battery with intent to kill and murder. Jones v. State, 11 S. M. 315; Morgan v. State, 13 S. M. 245; Morman v. State, 24 Miss. 57 ; Lewis v. State, 49 Miss. 356 ; Bedell v. State, 50 Miss. 496 . The instruction asked for and given by the court below to the State of Mississippi in this cause is misleading to a jury, is vicious and harmful and prejudicial against the defendant in this cause, wherein the said instruction sets out in the first paragraph that "the defendant Walter Word cut and wounded Frank Heard, with a deadly weapon without authority of law and with the deliberate design to effect his death, it will be your duty to find the defendant guilty as charged." This is not the law. The state should have in that part of the instruction the words "with malice aforethought." It further sets out in the instruction that deliberate design and malice aforethought are one and the same thing, which is erroneous and misleading. W.D. Conn, Jr., Assistant Attorney-General, for the state. The indictment (omitting formal parts) is that Walter Word "did wilfully, unlawfully and feloniously make an assault with a certain deadly weapon, to-wit, a knife, and with said deadly weapon and knife did then and there wilfully, unlawfully and feloniously, cut, wound and bruise one Frank Heard, a human being, with the wilful and felonious intent, then and there with his malice aforethought to kill and murder." We submit that the indictment does properly charge "intent." Smith v. State, 152 Miss. 114 , 118 So. 710 ; State v. Lee, 111 Miss. 773 , 72 So. 195; State v. May, 147 Miss. 79 , 112 So. 866 ; Wood v. State, 64 Miss. 761 , 2 So. 247. This question was neither raised in the trial court by demurrer (Section 1206, Code of 1930), nor by objections, motion to exclude, etc. If the indictment was amendable in the respect complained of, the verdict cured the error. At most, it could be argued only that technically the charge of felonious intent was awkwardly or defectively set out. Foster v. State, 52 Miss. 695 ; Collier v. State, 122 So. 538 ; Neilsen v. State, 149 Miss. 223 , 115 So. 429 ; Williams v. State, 130 Miss. 827 , 94 So. 882. We submit that the indictment here in question does follow the provisions of the state (Section 787, Code of 1930). Smith v. State, 152 Miss. 114 , 118 So. 710 . But even if it did not follow the precise and technical wording of that statute, it is not, for that reason, to be condemned. State v. Snowden, 164 Miss. 613 , 145 So. 622 . If the instruction should be held erroneous because of the omission of "and not in necessary self defense," such error was harmless in view of the many instructions on self defense procured by the defendant. Williams v. State, 100 So. 527. The terms "deliberate design" and "malice aforethought" are substantially synonymous. McDaniel v. State, 8 S. M. 401, 47 Am. Dec. 93; Hawthorne v. State, 58 Miss. 778 ; Dye v. State, 127 Miss. 492 , 90 So. 180; Huddleston v. State, 134 Miss. 382 , 98 So. 829.