Edward Gipson v. The State of Mississippi.
1. Circuit court: practice: judge mas: inquire op jury as to their meaning in A yerdict returned. — If there be any doubt or uncertainty in the language employed by a jury in returning their verdict, the judge may make such inquiry of them as will enable him to understand their will and intention, and may direct the verdict as thus ascertained to be recorded.
2. Criminal -law : assault in the attempt to commit manslaughter.— Whether under the statutes of this State, there is such an offence as an assault in the attempt to commit manslaughter,— Qumre? See Revised Code, 575, sec. 8, Art. 18.
3. Same : party may be convicted op an inperior constituent opfence. — By the express provisions of Art. 305, sect. 62, p, 622, of the Revised Code, the defendant in a criminal prosecution may be convicted of any offence necessarily included in, and a constituent part of, the offence charged in the indictment ; and hence, under an indictment for an assault with intent to kill and murder, the accused may be convicted of a common assault without such intent.
4. Same : unnecessary descriptive words will not vitiate verdict: case in judgment. — When the verdict convicts the accused of an offence for which he could be properly tried under the indictment, the unnecessary addition of words descriptive of the character of the offence in point of aggravation, will not vitiate it; and hence, under an indictment for an assault with intent to kill and murder, a verdict of guilty of an assault in the attempt to commit manslaughter will be good; for the verdict is a good finding as to the assault, and the descriptive words may be treated as surplusage.
Error to the Circuit Court of Warren county. Hon. John S. Yerger, judge.
The plaintiff in error was indicted for an assault on Jacob Webster, with intent to kill and murder; and was convicted of an assault in the attempt to commit manslaughter. The exceptions *296taken to tbe verdict are fully set out in tbe opinion of the court, together with the facts on which the exceptions are based.
On the trial, it was proven that one Hill, who was not an officer, was specially authorized by a justice of the peace, to arrest a son of Jacob Webster upon a writ issued by the justice of the peace, charging the defendant therein with a crime. Hill summoned several persons, and, among others, Gipson, the plaintiff in error, to go with him to the house of Webster, to arrest him on the execution of the writ.
It appeará that Hill and his posse, except Gipson and another, who remained behind the others, about two hundred yards, went to the outside inclosure of Webster, about one hundred and fifty yards from his dwelling, and sent for Webster, and informed him of the object of their visit. Webster agreed, that his son might go, but insisted that he should.be permitted to remain until the next morning. A quarrel soon ensued between Webster and Hill, in which insulting epithets were used by both parties, and a fight was prevented by the interposition of one of the posse. Webster was seen whispering to one of his sons (not the one charged with the crime), and this son left for the house. Soon after this, Gipson and his comrade arrived, when Webster, according to his testimony, and •that of á man engaged in vorlring for him, said: “There comes the black-hearted villain, that my daughter said made her run off.” The testimony for the defence was, that this statement was, in substance : “ There comes a black-hearted rascal, and I will shoot his heart out,” or “head off,” or words to that effect. Gipson immediately jumped over the fence, in the direction of Webster, who started to run to his house. Gipson pursued him a short distance, and fired a pistol at him as he ran. The testimony of the defence was, that at the time of the firing, Webster’s son, to whom he had been seen whispering, when the posse first arrived, was approaching his father, and within about forty yards of him, with a gun in his hands. Webster said, on cross-examination, that he sent his son for his wife, and not for a gun; but he admitted that, about the time of the firing, he saw his son on the gallery of the house, with a gun in his hands.
There was testimony, on the part of the defence, tending to show, that N. B. Webster and McAllister, two witnesses for the State, had, a short time after the assault, made statements in reference to it, in *297conflict with their testimony on the trial. There was, also, testimony introduced by the defence, to impeach, and by the State to support, the character of Jacob Webster for truth and veracity.
The court instructed the jury, at the instance of the prosecution, as follows :
1. “ Malice may be presumed from the use of a deadly weapon ; and it is not necessary to constitute murder, that he should have deliberated and premeditated the act for days, or hours, or for any particular period of time. If the intent to kill was deliberately formed in his mind and existed, but for an instant, at the time of the shooting, this would constitute sufficient malice and deliberation to constitute the crime of murder, if death had ensued.
2. “Every killing with a deadly weapon is presumed to be malicious, and amounts to murder, until the contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent on the accused, to make out such circumstances of alleviation, excuse, or justification, to the satisfaction of the jury, unless they arise out of the evidence in the case produced against him, or arise out of the whole evidence in the case. •
8. “No mere words, however insulting or provoking they may be, will justify or excuse the killing, or an attempt to kill, a human being.
4. “ If the jury believe, from the evidence, that Gipson made the attack upon Webster, and when he so made the attack, he labored under no apprehension of danger of great bodily injury from Webster, and had no reasonable ground to apprehend any such danger; and Webster fled, and Gipson pursued him with a deadly weapon drawn upon him, Webster would have been justified in shooting him in self-defence ; and Webster seizing a gun under such circumstances, for the purpose of defending himsel'f from Gipson’s attack, would not justify or excuse Gipson for shooting.
. 5. “ If the jury believe from the evidence that defendant went in company with others to the premises of Jacob Webster, and wil-fully shot at Webster when the latter was running from him unarmed, with the intent to kill and murder Webster, they must find the defendant guilty; unless they believe, from the evidence, that the defendant did believe, or had reasonable ground to believe, at the time of the shooting, that his own life was in danger, or that *298he was in danger of some great personal injury from Webster; and that there was imminent danger of such injury being inflicted by Webster; and that he had reasonable cause to believe that such course was necessary to protect himself from such great personal injury.
6. “ If the jury believe from the evidence, that Gipson, before going to the premises of Webster, armed himself with a deadly weapon, with the intention of using it, if necessary, to overcome him, Webster, in any contest that might arise between them; and, after arriving at the premises, he commenced an assault upon Webster ; not intending at the time of the attack to use the deadly weapon, unless it became necessary to use it to overcome Webster; and if they further believe from the evidence that he did use it while Webster was running from him unarmed, by shooting at Webster, with the intent to kill and murder Webster, or in the attempt to commit manslaughter upon Webster, they must find the defendant guilty, as charged in the indictment, or of shooting in the attempt to commit manslaughter, accordingly as they may believe the fact to be. Unless they believe from the evidence, the defendant used the weapon in necessary self-defence of his own life, or to avoid some great personal injury, imminent and impending, or which he had reasonable ground to believe was imminent or impending, and could not safely be avoided without the use of it.
7. “ If the jury believe, from the evidence, that there had been a previous quarrel between Webster and Gipson, or that there was an old grudge, or bad or angry feelings existing between them, when the parties went to Webster’s premises, it will be their privilege and duty to consider that fact in connection with the other facts and circumstances proved in the case, in determining the state of mind or motive of Gipson when he shot.”
To the giving of all these instructions, the defendant excepted.
The prisoner asked the following instructions :
The 8th was refused; the 11th and 12th were given as asked by the prisoner; and the remainder were given with the modifications hereinafter stated.
1st. “ That, unless the proof in the cause satisfies the jury beyond a reasonable doubt, that Gipson shot at Webster, from a deliberate *299and malicious design to kill and murder Webster, then they must acquit Gipson of an assault with intent to kill and murder.
The court modified it by inserting after the words “ reasonable doubt,” the words, “ arising fr.o.m the evidence.”
2d. “ That to shoot at another, with a deliberate design to kill and murder him, the mind of the defendant must have acted in regard to such shooting, and the mind of defendant must have settled down, resolved, and determinate, to kill and murder/; and the shooting must have been done with the deliberate mind and formed design of so doing; and, in the .absence of, proof of such a condition of mind at the time of the shooting by defendant, the jury must acquit him of the assault with intent to kill and murder.”
To which the court added as; a modification the following : “ This formed design and deliberate resolve ‘and intent to kill and murder may be established from circumstances, as well as from direct and positive proof. The acts of the accused, the weapon used, and the whole of the circumstances attending, the transaction, are to be looked to by the jury in ascertaining the design and intent with which the accused fired the shot or made-the assault.”
3d. “ That if the jury are satisfied from the proof, that Webster, without provocation, grossly abused and insulted Gipson, and the latter jumped from his horse and. crossed the fence in a passion (induced by such insult), and intending '.merely to punish Webster for the insult (without intending to hill and murder him, or inflict bodily harm on Webster); and after he .'crossed the fence he saw Webster making for his gun; and defendant had reasonable cause to believe that if Webster reached his gun, he would shoot defendant, and there was imminent danger, of his so doing; and defendant then, not from deliberate malice, but to protect his life, or person from great bodily harm (Immediately impending, and not otherwise safely to be avoided),.drew his pistol and fired at Webster, then the jury are bound to acquit the. defendant, and in such ease the defendant was not bound to .W.ait until- Webster reached his gun • or fired on him, before he used ‘his pistol.”
This--instruction, as asked, is-'printed in'roman type, and the modifications are in italics and included in ().
4th. “ That if the jury are satisfied, .from the proof, that the defendant did not assault Webster, with the intent to kill and *300murder Mm, or in the attempt to commit manslaughter on him, and made nothing but an assault on Webster, that is, did not hit or shoot Mm, and such assault was the result of abusive and insulting language used by Webster to him, then the jury are authorized to acquit him of any offence.”
This instruction was modified by adding: “ if the insult was a sufficient excuse or justification of the offence committed.”
5th. “ The jury are the judges of the truth and correctness of the testimony of the witnesses, and if they are satisfied, that any witness has sworn falsely to material facts in the case, they should regard his or her testimony with great caution, and will be justified in excluding the whole of it (unless corroborated by other witnesses, or the facts proved in the ease, or they may act upon such part of it, or the whole of it, as they may believe it to be corroborated and sustained by other witnesses and the facts and circumstances otherwise proven in the ease); and if they believe that any witness in the causé, from improper influences (or from reeldessness or carelessness), have sworn to material things as being true when they are not true, through no (corrupt) design to swear falsely, then the testimony of such witness should be taken with great care, and especially if contradicted by the facts in the case, and by unim-peached witnesses in the cause.”
This instruction as asked, is printed in roman; and the modifications made, are printed in italics and included in (). Thus modified it was given to the jury.
6th. “That if the jury are satisfied from the proof, that N. B. Webster and McAllister, on the evening the shooting took place, made entirely contradictory statements about material faets in the cause, to what they swore to on the trial, then the jury will be justified in excluding the whole of their testimony.”
To which the court added, as a modification, the following: “ Unless they believe that it is corroborated and sustained by other witnesses, and by the facts and circumstances proved in the case; they may exclude the whole of it if they disbelieve it, or they may act upon the whole of it, if they believe it to be corroborated, or they may act upon a part of it, and exclude a part, as they may believe the facts and circumstances and testimony in the case warranty.”
*3017th. “Whenever the evidencio leaves it indifferent which of several hypotheses or suppositions isGtrue, or merely establishes some finite probability in favor of lone hypothesis rather than another, such evidence cannot ¡amount to proof, however great the probability may be.” \
This instruction was modified so as to read as follows:
“ Whenever the evidence leaves it indifferent which of several reasonable hypotheses arising 'from the evidence before them, or growing out of the facts and. Circumstances of the transaction as exhibited by the proof, is true,-.or. merely establishes some finite probability in favor of the hypothesis of guilt, rather than that of innocence, such evidence cannot amount to legal and sufficient proof to warrant a conviction, however great the probability may be.” 8th. “ If the jury believe from the evidence, that Gipson only intended an assault and battery-upon Webster in consequence of the abusive language used by the la,ttei-,,an.d after he had got over the fence, found that ho was in danger of being shot by Webster, and had reasonable grounds for such belief,, and that he, Gipson, shot to avoid such threatened danger, and :in necessary, or apparently necessary, self-defence, the law" is for the defendant, and he is entitled to’ an acquittal.” •
This instruction was refused.. i
9th. “That the fact of ¿’man’s being armed with a deadly weapon, though he may be the ‘aggressor in a difficulty, amounts to nothing, unless he provided the weapon with a view of using it, if necessary, in overcoming his antagonist! It is unquestionably the right of any one, under the laws of this State, to carry a deadly weapon; and whether he is permitted to :use it or not, must depend upon the nature of the difficulty in which he may be involved.” This instruction was modified so as to read as follows:
“ By the constitution and laws' of this State, any citizen may wear arms and carry a deadly weapon ;• and the fact that a party was armed with a deadly weapon, -though he may be the aggressor in a difficulty, amounts to no proof of criminality against him; unless he provided himself with the Weapon with the intention of using it, if necessary, in overcoming his adversary. If he provided himself with the weapon, and intended from the first to use it to overcome his adversary, and did so use it, by making an assault upon him, *302not in necessary self-defence, nor to avoid some great personal injury, imminent and impending, or which he had reasonable ground to believe to be imminent, and that could not safely be avoided without its use, the law does not hold him justified or excused in so doing.”
10th. “ That to justify shooting or killing in self-defence, it is not necessary that the danger be actual and imminent, if such danger, though not actual, be apparently so, and on good faith believed to be so, by the party accused.”
This instruction was modified as follows:
“ To justify or excuse a party making an assault upon another, with a deadly weapon, in a manner likely to cause death, on the ground of self-defence, the party making the assault must have reasonable ground to apprehend a design upon the part of the person assaulted, to commit a felony upon him, or to do some great personal injury to him; and there must be imminent danger, either actual or apparent, of such design being accomplished. The bare fear of danger, or great bodily harm, however, upon the part of the accused, unaccompanied by any overt act upon the part of the assaulted, indicating or furnishing a reasonable ground to apprehend a present intention to do some great personal injury to the accused, would not justify or excuse the accused in making an assault upon the party with a deadly weapon, in a manner likely to kill. There must be some actual design at the time, or some overt act, upon the part of the person assaulted, indicating or furnishing a reasonable ground to apprehend a present intention to kill, or to do some great personal injury to the accused, and imminent danger of such design being accomplished. But whilst it is necessary that the danger should appear to be imminent, yet it is not essential that it should be immediate, imminent, and impending at the very moment of the assault. A party may anticipate the attack of his antagonist, and justifiably assault or slay him, if, under all the circumstances of the case, such course be necessary to protect himself, or he had reasonable ground to believe such course necessary to protect himself from death, or from great personal injury, or to prevent a felony being committed on him.”
11th. “ That if there rests upon the mind of the jury any reasonable doubt arising from the testimony, as to the guilt of the accused, *303or any of the circumstances necessary .to constitute guilt, the' accused is entitled to the benefit- of such- doubt, and the jury must acquit.” ' • .
12th. “ If the jury have a,reasonable doubt, arising from the evidence, as to whether Gipson .shot in self-defence or not, they must acquit.” '
13th. “ If there be any fact' éstablished by the testimony, irreconcilable with the hypothesis of the guilt of the accused, the jury must acquit, although all the-'other facts and circumstances of the case may coincide and agree .with the .hypothesis of guilt to the minutest particular.” ,, *•!
The court modified this, so as to make it read as follows:
“ If any one of the facts connected/with the transaction established by the testimony, be irreconcilable with the hypothesis of the defendant’s guilt, the jury should acquit the accused, although all the other facts and,'circumstances of the case may coincide and agree with the hypothesis of defendant’s guilt.”
The defendant excepted to the action.bf the court on the instructions asked by him.
The defendant having been convicted/ as stated in the opinion of the court, was fined in the sum-of ¡|500, and sentenced to jail for six months, and required to give- recognizance, with good security, in the sum of $2000, to keep :.the peace, and be of good behavior for ten years.
From this judgment he prosecuted this writ of error.
O. L. BtceJc, for plaintiff in error.
At the June term, 1858, of-./the .Warren Circuit Court, Edward Gipson was indicted for an assault, with “ intent to kill” and murder Jacob Webster, by shooting at him; and at the December term, 1859, of said court, he was, convicted of an assault in the attempt to commit manslaughter on Jacob Webster. Two motions were made in the court belpw';:,'one' for-a new trial, the other in arrest of judgment. Both motions were overruled by the court, and the ruling on each motion is.;.irisisted to be erroneous. I will consider the motion in arrest of judgment first.
The indictment was framed under' th,é first clause of Art. 18, sect. .8, of the Revised CodeJ' p."57'5. That clause provides, in *304substance, that to shoot at, or to attempt to discharge any firearms or air-gun at another wilfully, with intent to kill and murder, shall be punishable, &c., as therein provided. To complete the offence created by this clause, no battery is necessary. The legislature evidently intended to prevent the unlawful use of firearms, by making a mere assault with such a weapon, when the intent was to kill, an offence of the gravest magnitude. The policy of this legislation is readily perceived.
After clearly defining this offence, and making it to depend upon the nature of the weapon used, the legislature, in the same article, proceeds to define another and distinct class of offences, and say : “ Or of any ‘ assault and battery’ upon another with any deadly weapon, or other means likely to produce death, with intent to kill and murder, or to maim, ravish, or rob, such other person.” Here is created a second and distinct class of cases, the guilt of the party being made to depend, not upon an assault merely, but an “ assault and battery,” with “the intent” to injure the party upon whom the assault and battery is committed. In the preceding class of cases, it is absolutely essential to charge the “intent” correctly, and a variance would be fatal; as, for instance, if the indictment alleged the “intent” to be to kill, &c., A., and the proof showed it was B. against whom the injury was designed. See Jones v. State, 11 Smedes & Marshall, 315; Morgan v. State, 13 lb. 242; Anthony v. State, lb.. 263.
But a third, distinct, and separate class of cases yet remain to be provided for. A class of cases where the guilt of the party is not made to depend upon the “ intent” of the wrongdoer to do any harm or injury to the party injured, but where the injury results from “an attempt” to commit any felony whatever, though no intent exists to injure the particular person injured. The following is the language of the clause of the article defining this class of offences: “ Or in the attempt to commit murder, rape, manslaughter, burglary, larceny, or other felony.”
Manifestly, a striking difference exists between this class of cases, and both of the former.' In the first class, an “assault” is sufficient, but there must be a specific “ intent” to injure the party assaulted. In the second, an “ assault and battery” is essential, accompanied, also, with the “intent” to assault and beat the particular *305individual assaulted and beaten. But in the third, and last class of cases, the “intent” to assault and. beat the party injured is wholly immaterial. In the former classes, the “ intent” is the essence of the offence. Upon the intent -the crime depends, whilst in the third class, it does not enter into it. The guilt of the accused is made to depend upon an entirely different state of facts.
That different and wholly separate offences have been created by this article, has been directly decided by this court.
In the case of Morgan v-State, 13..Smedes & Marshall, 242, where A. was indicted for assaulting, &c., B., with intent to kill him, and the proof showed that B. was shot by A., but the latter intended to shoot C. and not B., and A. was convicted, the verdict was set aside by this court, upon the ground, that the proof must show the “ intent” as laid. If this be correct, and that it is, there can be no question, how is it possible for a party, who is indicted for an assault on A., with “ intent” to kill and murder him, to be legally convicted of an assault “ in the. attempt to commit manslaughter ?” The legislature, in defining; this third class of offences, intended to provide for a class where no particular intent existed to injure the person injured, but when it was done in the commission of some offence; and the'peculiar language, “In the attempt,” &c., was used to obviate the difficulty .presented in the case last cited. The court had decided, under the statute, it a mere assault and battery, to injure B., when the “intent” of the wrongdoer was to injure 0. To provide for this omission, therefore, and punish a class of offenders, whose guilt was as great as if an intent existed to injure the wronged party, the legislature has seen proper to create a new offence, and to declare, that a party assaulting and beating another, though unintentionally,' whilst the former is engaged in the commission of certain illegal acts, shall be guilty of a felony, and punished as severely as if an intent to injure existed. See Ainsworth v. State, 5 Howard Miss. Reports, 242; Mormon v. State, 24 Miss. Reports, 54.-
It is manifest, however, that the offences are wholly different. The case of Mormon v. The State, is conclusive of this case. Indeed, that case was not so violative of the rights of the accused, as the one at bar. The party in Mormon’s case, was convicted of an assault, “ with the intent,” &c., the verdict following the indict*306ment as to some intent. But in Gipson’s case, no “intent” of any kind is found by the verdict. It is that the act “ was in the attempt,” &c.
If, however, the court should be of opinion, that the words, “ in the attempt,” mean “with the intent,” then the case falls literally within the ruling in Mormon’s case.
For these reasons, I insist, the motion in arrest of judgment should have been sustained.
If the views expressed above be correct, it is palpable the court erred in the sixth instruction given for the State, which was, that under this indictment, plaintiff could be convicted of an assault “in the attempt to commit manslaughter and upon the motion for a new trial, the verdict should have been set aside.
The court below also erred in refusing to give the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth instructions asked by defendant, as asked, and in modifying and giving them as he did. The instructions, as asked, were proper ; it was, therefore, erroneous to alter them. See Miss. Reports. By the modifications of the. court, the defendant is made to ask instructions against himself. The court, in the modification to defendant’s fourth instruction, states to the jury, in so many words, that Gipson had committed an offence. This was, and is, certainly erroneous. Every modification, by the court, of defendant’s instructions, are so framed as to convey the idea to the jury, that defendant is .guilty of some offence.
I insist, therefore, the court below should have set aside the verdict, and granted defendant a new trial on this motion.
I will' add (to meet a view suggested by the attorney-general) that, the objection to the ruling of the court was taken as soon as possible, in the motion for a new trial. The indictment, for the offence it described, was good; but the objection is, that under the instructions of the court, the jury convicted .the defendant of an •offence not embraced or charged in the indictment. The instructions being erroneous, and the improper verdict resulting from them, the motion for a new trial was the proper and only way of correcting the error.
It may also be observed, that the verdict does not follow the indictment, and say the assault was committed by shooting.
*307
T. J. Wharton, attorney-general, for the State.
As to the Srst error assigned in this ease, I do not think it necessary to add a word. The point of that alleged error is simply this : the jury recommended the defendant to the mercy of the court, stating that they believed, that the higher penalty inflicted for the actual commission of such offences would be more severe than the circumstances attending this case would require. The verdict as entered, finds the defendant not guilty of the assault with intent to kill and murder, as charged, but guilty of assault in the attempt to commit manslaughter on Jacob Webster.
The first bill of exceptions fully explains this. A motion was made to correct the entry of said verdict on the minutes of the court by inserting the said recommendation to mercy. The motion was overruled, “ for the reason that after said verdict in writing was rendered and read, but before it was received by the court and before the jury retired, the court asked the jury if they found the accused not guilty of an assault and battery with intent to kill and murder, and found him guilty of an assault in the attempt to commit manslaughter, to which they responded, without being polled, in the affirmative.” I think it was clearly competent for the court to ask the question, before receiving the verdict, and to order the verdict to be amended, according to the answer of the jury. But what had the recommendation to mercy to do with the matter, even if it (the verdict) had been entered, as first found ? The question submitted to the jury, was the guilt or innocence of the defendant on the indictment and the proof adduced by the State. I may conscientiously believe the death penalty wrong in principle even in the most atrocious cases of homicide. ' I may think the penalty inexpedient and disproportionate; nay more, I may, as an abstract proposition, deny the moral right to impose it. Yet sitting as a juror to try a case and a true verdict render according to the evidence, what right have I to interfere my private opinion of the law imposing that penalty ? That is a matter belonging to the lawmaking power. The jury finds the fact of guilt — the law pronounces the penalty for the act. So that if the verdict had been entered as at first presented to the court, it is not perceived that the defendant could claim any benefit from the fact that the jury thought the penalty disproportioned to the offence. The court hears *308the te-siimony, and whilst the offence charged is technically made out, the circumstances attending it may not be marked by any great atrocity; the provocation which caused the attempt to kill may have been wanton and gross, and such as would be well calculated to arouse resentment in a manly and chivalrous bosom. All these things the court considers, within the discretion allowed by law, in determining the length of imprisonment the party shall undergo.
This is all that need.be said on that point. The verdict might have been entered as first presented, and it could only have been persuasive with the court in shortening the imprisonment. The disregard of it altogether would be no ground for reversing the judgment.
As to the errors complained of in the action of the court upon the instructions, I have only to say that I see no possible ground for controversy. > Those given on the part of the State conform to the rules prescribed by this court in repeated instances. I mention two decisions of this court particularly, which seem to me to have furnished every principle asserted in them. Price v. State, 36 Miss. R. 531, and Wesley v. State, 37 Miss. R., 327.
As to those asked by the defendant, the modifications affixed by the court were clearly proper, in order to put the jury in possession of correct rules of law as applicable to the facts of the case. The eighth instruction asked by defendant and refused by the court, is but a reiteration of the doctrine understood to be declared in the case of Wray v. State, 30 Miss. R. 673; which doctrine I consider in conflict with that established in the later decision of Price v. Stale, supra, and therefore repudiated by this court.
The fourth, fifth, and sixth instructions asked for the State and given, assert the true rules of law applicable to the case. They rest upon the cases cited above, Price v. State, and Wesley v. State. Those asked by the defendant, rest upon the case of Gotten v. State, 31 Miss. R. 504, and Wray v. State, supra; which being overruled by the assertion of principles in conflict with those in later adjudications, the court below was right in modifying them so as to make them conform to what is now the recognized and well-settled doctrine of this court.
The objection taken to overruling the motion for a new trial, because the verdict is opposed to the evidence, is without a shadow *309of foundation. No other verdict could have been rendered, without doing violence to the whole volume of evidence. Even if the evidence were conflicting, or doubtful, this was a matter for the jury to determine. They have def'ermined it, and with all their sympathies excited for the defendant (as shown by the recommendation to mercy), they have pronounced him guilty of an assault with intent to commit manslaughter, and .1 insist their verdict should not be disturbed.
I think it too clear for doubt, that the jury might convict of a common assault under the indictment. The charge is an assault with a pistol (a deadly weapon), and shooting with the same with intent to kill and murder. I insist that such an indictment is comprehended in the statute, upon which it is framed. The charge is one of the alternative offences therein described. -It does seem to be too strained and hypercritical to say, that unless the assault provided for in said statute was accompanied by a battery, that an indictment could not be sustained under that statute. Had death resulted from the shot of that pistol, would it be pretended that under an indictment charging the shooting to be murder, that a conviction could not be had for manslaughter, — the less offence being embraced in the greater. Why, by parity of reasoning, could not the verdict in this case be upheld under the indictment ?
Most certainly an “ attempt to commit manslaughter” is provided for in the statute. If death had resulted from the shooting, there can be no doubt that the killing would .have been manslaughter at the least, — only not murder, because of hasty excitement caused by the violent and insulting language used. I say it would have been murder. But admit that it would have been murder, then as death did not result, the jury could well find that the defendant was “ guilty of an assault in the attempt to commit manslaughter.” Let it be admitted that the latter part of the verdict is surplusage, and of no effect, still the jury convicted of an assault, and the court pronounced judgment as for an assault. That is an offence necessarily included in that charged in the indictment; and hence the jury were right under the statute (Code, 622, Art. 306), which declares that they may convict of any offence necessarily included in the one charged in the indictment, whether the same be a felony or misdemeanor.”
*310I have not discussed the technical question raised by counsel for plaintiff on the motion to arrest, because I do not think there is any force in it. I insist that the indictment was sufficient, and the verdict responsive, under the statute upon which the indictment was framed. Code, 575, Art. 18.
I refer to Art. 7, Code, 573, to show that the plaintiff, having gone to trial on the indictment on the plea of not guilty, is precluded from moving to arrest the judgment for the objection now urged, — that being a matter of which he could have taken advantage (if it be a well-founded legal objection) before verdict.
The construction of the statute (Code, 575, Art. 18) relied on by plaintiff, is a most forced and .unreasonable one, and requiring no reply.
An attempt to commit manslaughter, is An offence under the above statute. The indictment charges an assault with a certain pistol, loaded, &c., did shoot, &c., with intent thereby to kill and murder. I insist that it was just as competent to find the verdict which was found in this case, as it would be under an indictment for murder to convict of manslaughter. As to the strained distinction drawn between an assault with an intent to kill, and an assault and battery with intent to- kill by means of a deadly weapon, I submit that there is nothing in the statute to justify it.