Saunders v. State ( 1927 )

^* Corpus Juris-Cyc. References: Homicide, 30CJ, p. 16, n. 54, 56; p. 127, n. 42. Overt act together with intent essential to constitute attempt to commit crime, see 8 R.C.L. 279; 2 R.C.L. Supp. 588; 4 R.C.L. Supp. 544; 5 R.C.L. Supp. 463; 6 R.C.L. Supp. 498. The appellant was convicted on an indictment alleging that he, "upon one L.R. Collins, feloniously did make an assault, and then and there did attempt, by means of said assault on the said L.R. Collins, feloniously, willfully, and of his malice aforethought, to kill and murder the said Collins," and was sentenced to a term in the penitentiary.

One of the assignments of error challenges the sufficiency of this indictment to sustain a conviction for a felony. An attempt to commit murder is a misdemeanor at common law (30 C.J., p. 16;Traube v. State, 56 Miss. 153; Ex parte Burden, 92 Miss. 14, 45 So. 1, 131 Am. St. Rep. 511), but, by section 1043, Code of 1906 (section 807, Hemingway's 1927 Code), it is raised to a felony when the overt act evidencing the attempt is an "assault . . . upon another with any deadly weapon or other means or force likely to produce death . . . in the attempt to commit any murder," and such overt act must be specifically alleged in the indictment, otherwise the felony defined by the statute is not charged therein (Ainsworth v. State, 5 How. 242; Williams v. State, 42 Miss. 328). The trial and the punishment of the appellant for the felony defined by the statute was erroneous.

We do not pass upon the sufficiency of the evidence.

Reversed and remanded.