Hussey v. State , 144 Miss. 380 ( 1926 )

^* Corpus Juris-Cyc References: Assault and Battery, 5CJ, p. 764, n. 83; p. 767, n. 16, 17; p. 803, n. 59. Criminal Law, 16CJ, p. 1053, n. 93. Sufficiency of indictment for assault, see 2 R.C.L. 570. This is an appeal from a conviction for a simple assault.

The indictment charges that the appellant "in and upon one Fred Weaver then and there did wilfully and unlawfully make an assault . . . against the peace and dignity of the state of Mississippi."

A demurrer to this indictment was overruled and one of the instructions for the state charged the jury to convict the appellant in event they believed, from the evidence, that he "made an assault on Fred Weaver at the time and place and in the manner and form charged in the indictment."

The assignment of error challenges the overruling of the demurrer and the granting of this instruction.

The appellant's contention in support of his demurrer is that the indictment did not inform him "of the nature of the offense with which he is charged," in that it "fails to set out the manner and means of the alleged assault." An indictment for a simple assault is "sufficient which merely alleges that defendant made an assault." (5 C.J. 764, 2 R.C.L. 570, Bishop's Directions and Forms [2 Ed.] 102), and "it is not necessary . . . to allege the means or instrument used in making the assault where it is not an essential ingredient of the offense, or to aver the particular manner in which a weapon was employed" (5 C.J. 767).

The case of Jefferson v. State, 46 Miss. 270, relied on by the appellant, deals with the sufficiency of an indictment under a statute, and is not controlling here.

The appellant's objection to the instruction hereinbefore referred to is that neither it, nor the indictment to which it refers, sets forth the "manner and form" of the assault with which he is charged. Assuming merely for the sake of the argument that the instruction is erroneous in this respect, the error was cured by the first instruction, granted, at the request of the appellant wherein the jury were specifically advised of the "manner and form" in which they must believe the assault was committed before they could convict the appellant.

Affirmed.