State v. Sims

1. Criminal Law. Assault with intent to 7dll. Deadly weapon. Indictment. Code 1892, § 1026. Whether any weapon be a deadly one is a question of fact to be determined by the jury from the evidence, and an indictment for assault with a deadly weapon with an intent to kill and murder, which charges that the weapon used was a deadly one, is not demui’rable because the weapon is not specifically mentioned among those which the statute, code 1892, § 1026, make it an offense to carry concealed. 2. Same. Brick. An indictment, otherwise good, for an assault to kill “with a deadly weapon, to wit, a brick,” is not insufficient, because a brick was the weapon charged to have been used. 3. Same. Manner of use. It is unnecessary in an indictment for an assault with intent to kill and murder with a deadly weapon to set out the manner in which the weapon was used, although it is not by name designated as deadly in any statute.

From the circuit' court of, first district, Chickasaw county. Hon. Eugene 0. Sykes, Judge. Sims, appellee, was defendant in the court below; from a judgment sustaining a demurrer to the indictment the state appealed, to the supreme court. The opinion states the case. The language of the statute is, “Every person who shall be convicted of . any assault and battery upon another, with any deadly weapon or other means or force likely to produce death, with intent to kill and murder,” shall be punished, etc. Whether the weapon used is a deadly weapon, the allegation, as in this case, that it was, is sufficient on demurrer to be finally determined by the court as a question of law after the testimony is in. Bishoj) Statutory Crimes (3d ed.), sec. 320; 1 Am. & Eng. Enc. Law (old ed.), 816, 811. The following definition, given in Sylvester v. State (1882), 12 Ala., 201, has been adopted by Bishop, and the Am. & Eng. Enc. Law as a good one: “The instruction requested by the appellant was properly refused. It referred to the jury, for consideration and determination, the question whether the weapon employed in the killing was, in its nature and character, a deadly weapon; which is, generally, not a question of fact for the jury, but of law for the decision of the court.» 2 Bish. Grim. Law, see. 680; State v. Graton, 6 Ired (Law), 164; State v. West, 6 Jones (Law), 505. A deadly weapon is one not as asserted in the instruction, a blow from which would ordinarily produce death, but one from which, as it was used, death would probably result. And an instrument or weapon used in inflicting injuries upon the person of another may or not be esteemed deadly, according to the manner of its use, and the subject on •which it is used. State v. West, supra. And in determining, as matter of reason, whether the use of it imports malice, the actual effects produced by it are to be considered. From a consideration of the results of the use of the weapon, and the manner and circumstances of its use, the attention of the jury would have been diverted,- if this instruction had been given.” 9 Am. & Fng. Enc. Law, 457; Bish. New Grim. Law, 680; Spradley’s case, ante, 82. It is not necessary to add to the allegation that the brick was a deadly weapon, the words “and a means of force likely to produce death.” The clear import of the statute is that, where a deadly weapon per se is not used in a felonious assault •with intent to kill and murder, but some other means or force likely to produce death is used to accomplish the intent, then it is proper to allege what the means or force used was, and allege that it was such means or force as was likely, so used-to produce death. To illustrate: Such an assault and battery could be made by feloniously withholding food to starvation, or by shoving one from a boat to be drowned, or by hanging with a rope, and the like. The court should have overruled the demurrer and heard the evidence in the case, and thus determine whether the brick was in fact a deadly weapon, and whether it was so used in the assault upon Thompson. The court did not err in sustaining the demurrer to the indictment. A brick is not a deadly weapon. Oode 1892, § 1026, defines what a deadly weapon is under the laws of this state, it says: “Deadly weapons; carrying concealed. Any person carrying concealed, in whole or in part, any bowie knife, dirk knife, butcher knife, pistol, brass or metallic knuckles, slung shot, sword, or other deadly weapon of .like kind or description,” etc. That is to say, it must be a deadly weapon of the knife kind, the pistol kind, tbe knucks kind, the sword kind, or the slung shot kind. That is the reason § 967 of the code of 1892 adds generally: “With any deadly weapon or other means or force likely to produce death.” If the indictment does not state that assairlt was made with a deadly weapon as recognized by the laws of the state of Mississippi, then the indictment must charge that the assault was done “with means or force likely to produce death.” This addition to the law was not made for a useless purpose. This indictment wholly fails to charge that the assault was made with other means or force likely to produce death. A brick might be “a means or force likely to produce death,” but under no consideration could it be a “deadly weapon” under the laws of this state. Section 320, Bish. St. Crimes (3d ed.), referred to by appellant, says that whether a weapon is a deadly weapon is a question of law for the court. Sylvester v. State, 72 Ala., 201. A brick per se, is not a deadly weapon. It is not a weapon at all. A weapon is an instrument of offense; particularly any instrument used or designed to be used in destroying or annoying an enemy, as a sword, a dagger, a rifle, or a cannon. It is elementary that the most penal statutes must be most strictly construed and follow the words of the statute. Suppose for the sake of argument that defendant was charged to have committed an assault on affiant with a deadly weapon, to wit, by pushing affiant off into the -sea, or by withholding food from affiant, or any other person. Here is where the statute, “or other means or force likely to produce death,” comes in. A deadly weapon must be an “instrument or weapon used in the infliction of injuries.” Slate v. West, 6 Jones, 505. A brick .in no sense of the word is either an instrument or a weapon. It might be a means or force likely t.o produce death, but certainly could not be a deadly weapon. A brick in its first state is absolutely harmless, and could not be a deadly weapon. It is soft and pliable, and could not produce injury. It has never been the practice in this state to hear evidence upon demurrer. The court takes judicial notice of what is a deadly weapon, and what is not. 18 Iowa, 435; 113 111., 34; 65 N. 0., 330. The case relied upon by the state is 72 Ala., p. 201. This case refers to instructions and not to demurrer. Instructions are always given after the evidence goes before the jury, and not before. It also states as to whether the weapon was a “deadly” weapon is a question of law for the court. The attorney-general in his brief says: “Where a deadly weapon per se is not used in a felonious assault with intent to kill and murder, but some other means or force likely to produce death is used to accomplish the intent, then it is proper to allege what the means or force used was, and allege that it was such means or force as was likely, so used, to produce death.” This is exactly what the indictment does not do. A brick is not per se a deadly weapon — it is not a weapon at all. A chair is not a deadly weapon. Eouns v. Siate, 3 Texas App., 13.