Jimerson v. State , 93 Miss. 685 ( 1908 )

Whitfield, C. J.,

delivered the opinion of the court.

The indictment in this case is drawn under Code 1906, § 1043, and was demurred to on the ground that it charged distinct and independent felonies to the number of six, and punishable, too, by different penalties. This is an entire misconception of the effect of the language used in the indictment. The substantial charging part of the indictment is as follows: “Present that James Jimerson did then and there willfully, unlawfully, feloniously, and of his malice aforethought make an assault upon the person of one E. A. Pay with a certain deadly weapon, to-wit, a pistol, with intent and in the attempt him, the said E. A. Pay, then and there willfully, unlawfully, felonously, and of his malice aforethought to kill and murder, and did then and there with said deadly weapon aforesaid him, the said E. A. Pay, willfully, unlawfully, feloniously, and of his malice aforethought, shoot strike, hit, mutilate, wound,, and maim, with intent and in the attempt him, the said E. A. Pay, then and there willfully, unlawfully, feloniously, and of his malice aforethought to kill and murder," etc. The statute (section 1043) is as follows:

“Every person who shall be convicted of shooting at another, or of attempting to discharge any firearms or air-guns at another, willfully; or of any assault or assault and battery upon another with any deadly weapon or other means or force likely to produce death, with intent to murder or to maim, ravish or rob such other person; or in the attemjpt to commit any murder,, rape, manslaughter, burglary, or other felony; or in resisting, the execution of any legal process, or any officer or private person lawfully attempting to arrest him or any other person— shall be imprisoned in the penitentiary not more than ten years,, or shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than one year or by both.”

Two things are perfectly clear: First, the statute, of course, provides, manifestly, for many entirely distinct, independent, and separate offenses; second, that this indictment, however,, charges substantially but one offense, or, at the most, two offenses growing out of one single criminal act, so intimately associated, being punishable, too, by the same punishment, as-that it was perfectly competent to charge them both,, if they may be regarded as two distinct offenses, in one and the same-indictment, within the proper interpretation of the rales of law upon this particular proposition. There is no charge of maiming anybody. There is no- charge of manslaughter. There is no charge of shooting at anybody. The indictment indulges in a good deal of tautology; but the charge, stripped of all useless verbiage, is simply that the appellant made an assault and battery upon Nay with the intent and in the attempt to kill and murder him. If, now, it can be said, with any common-sense logic, that an assault and battery with intent to kill and murder is an entirely separate and distinct offense in the abstract from an assault and battery in the attempt to kill and murder, still the answer on this particular indictment is that, though there-may have been, as stated, two distinct and independent offenses in the abstract, there could not possibly have been in the concrete case made- by the indictment, since there was- but one criminal act out of which the assault and battery grew, and hence there could have been, necessarily, but one offense growing out of the single act, or, at the most, two offenses, necessarily inter-.blended and involved one with the other — both, if there were two, punishable in the same way. An acquittal or conviction under this indictment of an assault, etc., with intent to kill, since there was but one offense, would undoubtedly operate as a bar to any further prosecution for either. It seems to us over-refinement to attempt any practical distinction whereby two offenses, an assault, etc., with intent, and an assault, etc., in the attempt, to kill, can be carved out of one single act; the punishment in both cases being the same. Both charges involve the idea of an assault; and, if an assault committed with intent to kill, how is it possible to say that that assault was not also committed in the attempt to kill? And, again, how is it rationally possible to conceive of an attempt to kill another with a deadly weapon, unless that other commits such attempt to kill with the intent to kill and murder?

It is undoubtedly bad practice, as we have often held, to join in the saíne count of an indictment two totally distinct and independent felonies punishable by different punishments; but that is not this case. We have held that there are exceptions to the general rule that two crimes cannot be charged in the same count of an indictment; for example, we have been held that larceny and burglary may be joined in a single count, in Roberts v. State, 55 Miss. 421, and so, in Clue v. State, 78 Miss. 661, 29 South. 516, 84 Am. St. Rep. 643, we have held that it was proper to charge in an indictment for arson that the defendant set fire to and burned a certain cotton house, the property of A. B., and also three bales of cotton contained therein, the property of B. C., since the house and cotton were both consumed as a result of the same act. See, also State v. Dalton (Miss.) 44 South. 802, and Ward v. State (Miss.) 43 South. 466. Mr. Bishop says, in his New Criminal Procedure (volume 1, § 436): “A statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then, hy proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet lie violates it equally by doing one of tlie tilings. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.” And So, in 10 Ency. of Pl. & Pr., at page 536, it is said: “When a statute enumerates several acts in the alternative, the doing of any of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense.” The soundness of the principle announced in these two quoted authorities is undoubted; but it is not applicable to this indictment.

We think that the principle announced in Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, to the effect that an indictment is not rendered double because it-charges in the same count that one not only forged and counterfeited certain writings, but also caused the same to be done, is perfectly correct, and we prefer to rest our decision in this case on the proposition that an assault and battery with intent to kill and an assault and battery in the attempt to kill, where both grew out of a single criminal act, may be charged together properly in the same count of the indictment, and that such an indictment is not double in any proper sense. Treating the two offenses as separate offenses in the abstract, they nevertheless in the concrete grow out of the same criminal act, and they are necessarily intimately associated, if not identical, in the particular case, and the two, if there he two- in any just conception, are so interblended, and the one so necessarily implicated in the other, the punishment being the same for both under the particular statute, as that it cannot be said, on any rational line of thought, that such an indictment is duplicitous in any proper-legal sense.

The judgment is affirmed.