Canterbury v. State

1. Criminal Law and Procedure. Assault with intent to murder. Deadly weapon. Indictment. An indictment for an assault and battery with intent to kill and • murder, charging that the offense was committed with a deadly weapon, is not defective for failure to specify the particular weapon used. 2. Same. Altercation ended. New one. Defendants who, after an altercation has ended, follow a departing adversary and fall upon him, when they are in no danger real or apparent from him, and stab him with knives until restrained by others are guilty of assault and battery with intent to kill and murder. 3. Same. Instru.ctions. An instruction is erroneous and should be refused if there be no evidence of which to predicate it. 4. Same. Bequest for instruction. Court not to give without. Code 1906, § 793. In a prosecution for an assault and battery with intent to kill and murder the court is without authority under Code 1906, § 793, so providing, to give an instruction to the effect that the jury might find defendants guilty of a lesser constituent offense, in the absence of a request in writing to do so. 5. Same. Harmless error. It was not prejudicial error, where the evidence overwhelmingly showed a battery as well as an assault with intent to kill and murder, to instruct that the jury might convict of an assault and battery with intent to kill and murder, upon belief from the evidence that defendants were guilty of an assault with such intent.

From the circuit court of Smith county. Hon. Bobert L. Bullard, Judge. The appellants, Bud and Abel Canterbury, brothers, were, together with their father, John Canterbury, jointly indicted for an assault and battery upon one Samuel Harrison with intent to kill and murder him. At the instance of the district attorney, who desired to secure the testimony of the father, John Canterbury, the court below caused a verdict of not guilty as to John, the father, to be placed upon the minutes of the court. The two brothers, Bud and Abel, were tried jointly; the ■ indictment charging that they did “wilfully, feloniously and of malice aforethought make an assault on one Sam Harrison, with deadly weapons, to-wit, pocketknives, and him, the said Sam Harrison, they, the defendants, with said deadly weapons then and there wilfully, feloniously and of malice aforethought did strike, cut and wound in the attempt and with the intent, him, the said Sam Harrison, with said deadly weapons, wilfully, feloniously and of malice aforethought to kill and murder, against the peace and dignity,” etc. The jury returned a verdict of guilty, as charged in the in-. dictment, and the defendants were sentenced to the penitentiary, Bud for five years, and Abel for seven years. The facts in regard to the killing, and the points upon which reversal was asked, are fully stated in the opinion of the court. The first instruction granted for the state was erroneous. It was as follows: “The court instructs the jury for the state that even though they should believe from the testimony that Sam Harrison was the aggressor, yet if they further believe from the evidence beyond a reasonable doubt that Harrison abandoned the difficulty and began a flight and if they further believe from the evidence beyond a reasonable doubt that Harrison was pursued by Abel Canterbury and Bud Canterbury and attacked by them with deadly weapons with intent to kill and murder said Harrison at a time when they, defendants, were in no immediate danger, real or apparent, of loss of life or great bodily harm, they should find the defendants guilty as charged in the indictment.” It is erroneous in several particulars. 1. It does not define murder, and, therefore, did not inform the jury what was meant by an intent to murder. Kearney v. State, 68 Miss.,’239, s.c., .8 South., 292; Hunter v. State, 74 Miss., 519, s.c., 21 South., 305; Jackson v. State, 79 Miss., 45, s.c., 30 South., 30; Wood v. State, 81 Miss., 165, s.c., 33 South., 285; Lofton v. State, 79 Miss., 723, s.c., 31 South., 420; Harper v. State, 83 Miss., 413, s.c., 35 South., 572. It seems a travesty to tell the jury to convict if the defendants intended to kill and murder, without informing the jury of any of the elements of murder- — that it was necessary to be done of.malice aforethought, or deliberation, or premeditation. As well instruct the jury to convict if the defendants are guilty. 2. The charge in the indictment is of a joint offense and there is no evidence of conspiracy or concerted action on the part of defendants; and an instruction should not he given without evidence to which it could' apply. Ball v. State, 67 Miss., 362, s.c., 7 South., 353; Brabston v. State, 68 Miss., 208, s.c., 8 South., 326; Hogan v. State, 46 Miss., 274; Association v. McConnico, 53 Miss., 233; Kinnare v. Gregory, 55 Miss., 612; Wheaton v. Sexton, 17 U. S. (4 Wheaton), 508. 3. The instruction denies defendants-the right to-have the jury consider whether the act would have been murder or manslaughter,, had Harrison been killed. Eaverson v. State, 73 Miss., 810, s.c., 19 South., 715; Wharton on Homicide, sec. 5. 4. The instruction told the jury that a conviction was required if the assault and battery with intent to kill and murder was made with any kind of deadly weapons; whereas, the indictment charged that it was made with' pocketknives. Lanier v. State, 57 Miss., 102; Porter v. State, 57 Miss., 300; Dick v. State, 30 Miss., 630; Commonwealth v. McGowan, 1 Metcalf (Ky.), 368; Kinnard v. State, 35 Texas Crim. Rep., 27G; Slate v. McDonald, 10 Mon., 21, 24 American St. Rep., 25; Lunsford v. State, 1 Tex. Ct. App., 448; Brisco v. State, 4 Tex. Ct. App., 219; Jorclt v. State, 31 Tex., 571; Lynch v. State, 89 Ala., 18. These authorities demonstrate that the allegation must be supported by the evidence, even where the allegation is a matter of description that need not have been inserted. 1 Greenleaf (15th ed.), secs. G5, 68; Gray v. State, 11 Tex. Ct. App., 411; Com. v. King, 9 Cushing (Mass.), 284; Berrien v. State, 83 Ga., 381. On the first one of these points I- do not deem it necessary to comment further than to make reference to the authorities to which I have referred. If the court undertakes to instruct the jury at all it ought to instruct it as to some principle of law that does not appear upon the face of the pleading. For instance, on an indictment for murder it would seem idle to instruct the jury to find the defendant guilty of murder if they believe from the evidence that he is guilty of murder, without defining murder. So if the jury is instructed to find the defendant guilty of assault and battery with intent tq, kill and murder, if the jury believe he intended to kill and murder gives no guide to the jury, as to what constitutes murder. It does not tell them that murder has as its basic element malice aforethought, deliberation, or premeditation. This is a joint offense, and the two defendants ought not to be convicted of two several offenses although they are exactly of the kind charged to have been committed by them jointly. The rights of defendants ought to be scrupulously protected. In this particular case the statute provides that they cannot have a severance unless they ask for it before either is arraigned and pleads. Two men may be arrested and brought into court and immediately arraigned and may plead not guilty before they have an opportunity to get a lawyer, not knowing the necessity of a lawyer from the beginning, and then they are denied the right to a severance. Parenthetically, allow me to illustrate by this very ease, although the illustration does not appear in the record, but I am reliably informed that these defendants were arrested and arraigned and pleaded not guilty before they had an opportunity to employ counsel, and then when their counsel asked for a severance were denied the severance because the application came too late. It is important, therefore, that defendants be protected to the extent that crimes by them severally shall not be permitted to be charged against them jointly and then they be denied a severance. Ball v. State, 67 Miss., 362, s.c., 7 South., 353; Elliot v. State, 26 Ala., 78, which in Ball v. Slate is said to be the correct doctrine. I contend that the offenses, if offenses at all, committed by Bud and Abel Canterbury were separate offenses, — not joint. There is not the least pretense in the evidence that there was any conspiracy or concerted action between these two defendants. They were not in sight of each other when the difficulty commenced. Preaching was over for the morning and Abel was at the table, where dinner was being served; Bud was on a different part of the ground, at the church house door. After the difficulty commenced and after Harrison had stabbed both Abel and old man Canterbury, and manifestly supposing old man Canterbury killed, had run, Bud Canterbury heard someone exclaim that his father was killed, and started to his father, and saw him bleeding, with an awful gash cut in his throat, and as one of the witnesses for the state described it, “with the whole side of his head cut off,” and as another witness for the state described it, “his under jaw was cut through from the back of'his ear and into his mouth,” and Harrison, running, met Bud, cut at him with his knife and cut his collar, and from that he and Bud engaged in a running fight, into which Abel afterwards fell. Abel testified that he did not cut Harrison at all. But granting that Abel cut him, as well as Bud, each was cutting on his own responsibility and neither was responsible for the act of the other, and had he been killed by one, the other would not have been responsible for the homicide. Por this I refer to the case of Brabston v. State, 68 Miss., 208, s.c., 8 South., 326. On p. 219 of that case as reported the court says: “We recognize that if two or more agree to kill, another person or do him great bodily harm, and designedly and knowingly cooperate in an effort to accomplish that common purpose, and, in executing that purpose, one of them kill him, all are principals in the homicide, and equally liable in law for it; but we do not hold the doctrine that if two men fight in a crowd, with or without deadly weapons, and some outsider, without concert with or knowledge of either of the two combatants, fire at and kill one of them, as his prejudice or prepossession may prompt, the survivor is responsible in law for the homicide.” So this doctrine of their joint responsibility is repudiated by the supreme court in the quotation which I have just made. Both Abel and Bud Canterbury' testified that they did not see each other during the conflict. Therefore, if there were any offenses committed at all by these two defendants, or either of them, it was several, and not a joint offense. “In homicide, — if without concert, one inflicts an injury on a man one day, and another injures him on a different day, and he dies, the two cannot be indicted jointly'; because, in law, under these facts they are not jointly guilty. 1 Bishop, New Criminal Procedure, sec. 470, par. 2; Regina v. Devett, 8 Car. & P., 639; Archb. PI. & Ev., 13, London edition 54.” Now, if the injuries named in this were a day apart or an hour apart or a minute apart or a second apart, for that matter, it is immaterial. ' The material thing is that they are separate and independent injuries, inflicted by different persons. The authority for the proposition that the length of time the offenses were apart is immaterial is found in the case of Jones v. State, 66 Miss., 380, s.c., 6 South., 231. In that ease it was held by the supreme court of this state that Jones could be guilty of an offense in cutting Lloyd and of another separate offense in cutting Thomas, although they were both cut in the same difficulty and practically at the same time. The court also held in that case that he could be innocent in cutting Lloyd and guilty in cutting Thomas, although it was in the same fight. This demonstrates as conclusively as a proposition in geometry that the length of time between the two offenses, whether a day or an hour or a minute or a second, is not material, and makes the authority I referred to in First Bishop’s New Criminal Procedure, sec. HO, par. 2, as applicable where the two injuries are inflicted by two different persons in different seconds as on different days. Again the instruction is erroneous because it denies defendants the right to have the jury consider whether the act would have been murder or manslaughter, had Llarrison been killed. Wharton on Homicide, sec. 5; Eaverson v. State, 13 Miss., 810, s.c., 19 South., 115. The instruction is predicated upon the admission that Harrison was the aggressor. The evidence shows that he was the aggressor, with a knife, and that he cut Abel Canterbury on the arm with it over the shoulder of his father, and nearly killed old man John Canterbury. Harrison himself testifies that he had a knife that he had picked up to eat dinner with. In the very nature of the case he was bound to have had that knife, when he first struck Abel Canterbury. On cross-examination this question was propounded to Harrison: “Isn’t it a fact, that you was standing at the table with a knife in your hand?” His answer was, “Not at the table”; evidently intending to' admit that he had a knife in his hand. Then the next question, “At Mr. Luckey’s wagon; weren’t you standing back at Mr. .Luckey’s table with a knife in your hand ?” to which he answered, “I don’t know, I had it open, got the knife open.” Now remembering that he hit Abel but one lick and remembering that instantly after old man Canterbury was stabbed in the side, and his head nearly cut off, Harrison must have had his knife open before the difficulty commenced. Nobody claims to have seen Abel with a knife before he was cut, or before his father was cut, or before Harrison ran, and a number of witnesses testified that Abel ran away and hoilowed for a knife after Harrison had cut him in the arm. This question was asked Harrison: “Isn’t it a fact that when you struck him Abel ran and asked someone to give him a knife?” to which Harrison answered, “I don’t remember whether I cut Abel or not.” The next question then is, “Did you cut at Abel ? ” and his answer is, “I don’t know. I couldn’t state. I had a little old knife, and I did the best I 'could with it to save my life.” Now, as he struck Abel but once, and does not know whether he cut him or not, and says he did the best with the knife he could, this also proves that he cut Abel before Abel ever did anything to him except to pull off his coat and offer to fight him. Harrison, in speaking about old man Canterbury, said, “I cut him, never had my hands on him.” When he was asked, “ Isn’t it a fact that all of this part of the jaw fell down and you stabbed him in the back?” (having reference to the father, John Canterbury), Harrison answered, “I don’t know whether I did or not.” Thus far I have adverted only to the testimony of the prosecutor and the prosecution witnesses. Now note the testimony of Dukes, a witness for defendants, who testified • that when he saw the trouble brewing, the father, John Canterbury, had hold of his son Abel, shoving him back, and witness never saw Harrison until the old man had about settled Abel, when Harrison came around from back of the wagon and ran up and cut Abel over his father’s shoulder, and as he did so the father, who had about quieted his son Abel, turned'to shove Harrison back, who had become the aggressor, — not for the purpose of doing Harrison any violence, but to prevent Harrison’s further violence upon Canterbury’s son, and Harrison thereupon stabbed this old man, catching him by the whiskers and cut his head nearly off, and then ran. This testimony of Duke’s is supported by the testimony of a number of other witnesses, both for the state and for the defendants. “Where, upon sudden quarrel, two persons fight, and one of them kills the other, this is voluntary manslaughter, and so if they, upon such occasion, go out and fight in a field; for this is one continued act of passion. -So also if a man be greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable homicide, not being se defendeudo. In these and sudh like eases, the law, kindly appreciating the infirmities of human. nature, extenuates the offense committed, and mercifully hesitates to put on the same footing of guilt, the cool, deliberate act and the result of hasty passion.” 1 Wharton on Homicide, sec. 5, also Brabston v. State, 68 Miss., s.c., 8 South., 326, and Eaverson v. State, 73 Miss., s.c., 19 South 715; Mormany. State, 24 Miss., 55; Gipson v. State, 38 Miss., 310; Bedell v. State, 50 Miss.; and I contend that this instruction erroneously denied to the jury the right to decide whether it would have been murder had either of the Canterburys killed Harrison. The first instruction is erroneous in that it authorizes the jury to convict if the assault was made with any kind of deadly weapons, whereas, the indictment charges an assault and battery with poclcetlcnives. There is no evidence as to the kind of knives used, or as to the kind of knives that either of the defendants had, except the testimony of one witness that Bud had a knife that looked like a drawing knife. A drawing-knife is defined by Webster to be, “A joiner’s tool, having a blade, with a handle at each end, used to shave off surfaces by drawing it to one, a shave, also called draw-shave, and drawing-shave. A tool used for the purpose of making incisions along the path a saw has to follow, to prevent it from tearing the surface of the wood.” A pocketknife is defined by Webster to be “a knife of one or more blades, which fold into the handle, so as to admit of being carried in the pocket.” If there was evidence from which it might be inferred by the jury that the knives used by Abel and Bud were pocketknives the instruction does not call upon the jury to decide that question, but tells the jury that if any deadly weapons, were used it is sufficient. In the case of Lanier v. State, 57 Miss., 102, the syllabus says as follows: “Under an indictment for assault with a pistol the accused cannot be convicted of an assault with another weapon.” This is borne out by the text of the decision, where, on page 105, this language was used by Chief Justice George, to-wit: “It is true that under the indictment the jury were authorized to convict of an assault with a pistol only ” It was necessary to mention that the assault and battery was committed with a deadly weapon. Code 1892, § '967. Then this language is used by Greenleaf, sec. 65, p. .103, of the 15th edition: “But where a person or thing, necessary to be mentioned in an indictment,. is described with unnecessary particularity, all the circumstances of the description must be proved; for they are all made essential to the identity.” See .also sections 56, 57 and 58. In section 58 this language is used, to-wit: “In the first place, it may be observed that any allegation which narrows and limits that which is essential is necessarily descriptive.” Now if this description is unnecessarily particular it must, nevertheless, be proven. State v. Newland, 7 Iowa, 242; 71 American Decisions, 444. In that case the syllabus, which is borne out by the text, uses this language, to-wit: “Where a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved.” See also Gray v. State, 11 Tex. App., 411. These are sufficient authorities to sustain the proposition that I make, that the restriction of the weapon to a poeketknife is not such surplusage as can be rejected. It probably would have been sufficient to describe the deadly weapon as a knife — I am not prepared, however, to say that it would be sufficient — but when it is described as a pocketknife, then whether this is unnecessary particularity or not it must, according to the authorities I have named, be proven to have been a poeketknife. Otherwise, there is a variance between the allegations and the proof. 1 Greenleaf, secs. 56, 57, 58, 65; Gray v. State, 11 Tex. Ct. App., 411; Berrien v. State, 83 Ga., 381; Com. v. King, 9 Cushing (Mass.), 284; Stratton v. State, 13 Arlt., 688; Lanier v. State, 57 Miss., 102; Dick v. State, 30 Miss., 300. But this instruction tells the jury that it is not necessary to prove the weapons to have been pocketknives, but that if they were any kind of deadly weapons it was sufficient to sustain the indictment. It seems to me clear that -this is such a glaring’ error as to call for a reversal of the ease. With this error committed in the instruction the defendants did not have the benefit of a correct enunciation of the law to the jury and having been convicted upon erroneous enunciation of the law were subjected to severe penalties, and have been undergoing imprisonment in the jail since the trial. There is another serious error in this first instruction. The indictment is for assault and battery with intent to kill and murder, yet this instruction says that if the defendants attacked ITarrison with deadly weapons they should be found guilty as charged, which means assault and battery with intent to kill and murder. Now, they may not, according to that instruction, have been guilty of doing more than assaulting him, because “attack” means to assault — 3d Cyc., p. 1033; Wilson v. State, 53 Ga., 205 — yet they are told that upon committing an assault with deadly weapons with intent to kill and murder they are to be found guilty of assault and battery with intent to kill and murder. Bryant v. State, 41 Ark., 359; Young v. People, 6 111. App., 434. The second instruction for the state is probably not erroneous in so many particulars as the first one; but it has one error in it that is utterly fatal. The instruction reads as follows: “The court charges the jury for the state that if from the evidence they believe beyond a reasonable doubt that defendants, Abel Canterbury and Bud Canterbury, made an assault on Sam Harrison with deadly weapons, or if they made an assault and cut and wounded the said Harrison with deadly weapons, to-wit: pocketknives, with intent to kill and murder him, the said Sam Harrison, as charged in the indictment, at a time when they, the defendants, were in no immediate danger, real or apparent, of loss of life or great bodily harm, then the jury should return a verdict of guilty as charged in the indictment.” This instruction charges the jury in the alternative. The first alternative is that if the defendants made an assault on Sam Harrison with deadly weapons they are to convict. The second is that if they made an assault and cut and wounded Harrison with pocketknives with intent to kill and murder him they are to convict. Surely the assault on Harrison with deadly weapons would not justify a verdict of guilty of assault and battery with intent to kill and murder. If it be said that the instruction meant something other than it said, then it was erroneous because it was not explicit enough to be understood and was, therefore, confusing. An instruction should be instructive as to the law, and not confusing. It was error to modify the twelfth instruction asked by the defendants by striking out the words, “and to pursue Sam Harrison.” 1 East P. C., 271; Stale v. Thompson, 9 Iowa, 188, 192; 1 Bishop on Criminal Law (7th ed.), sec. 853. In this section of Bishop this language is used: “A man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony; such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases, he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and, if he kill him in so doing, it is called justifiable self-defense.” Bud Canterbury testified that- after Harrison struck at him with his knife, he struck back, and that ILarrison then ran his hand .in his bosom as if about to draw a pistol, and then he followed him with his knife. The state, it will be noticed, when Bud Canterbury started to tell what he thought if he didn’t jump right on ’Harrison, objected, and seems to have interrupted the connection of his testimony; but there is enough of it to show that he thought he was in danger from a pistol if he didn’t pursue the advantage he had. Several other witnesses (some of them state’s witnesses) testified that they feared Harrison would shoot and that they got out of line for that reason. So the part of the instruction that was stricken out was applicable to the case, and ought to have remained in the instruction. The first instruction for the state was fatally defective, for as granted it excluded any consideration of heat or passion. The second instruction for the state was also fatally defective, for it directed conviction of assault and battery with intent to murder, although the defendants were guilty only of an assault with deadly weapons. The word, assault, does not include in its meaning the word, battery. Code 1906, § 1043. The indictment merely says that the defendants “did unlawfully, wilfully, feloniously and of malice aforethought make an assault on one Sam Harrison, with deadly weapons, to-wit, pocketknives.” The instruction extended its sway beyond the limits of the charge in the indictment. The court erred in modifying the twelfth instruction asked by appellants. The modification consisted in the striking out of the instruction the words, “and to pursue Sam Harrison.” By reason of the modification of this instruction, it was not read to the jury. It was error to so modify it. Fortinberry v. State, 55 Miss., 403. The verdict of the jury was not supported by the law nor by the evidence. And a new trial should have been granted the appellants. If the wounds inflicted on Harrison had resulted in his death, appellants, at most, would have been guilty only of manslaughter. Cotton v. State, 31 Miss., 504; Beasley v. State, 64 Miss., 518, s.c., 8 South., 234; McLdurin v. State, 64 Miss., 529, s.c., 1. South., 747; Kelly v. Statef 68 Miss., 343, s.c., 8 South., 745; Jackson v. State, 79 Miss., 42; Rowland v. State, 83 Miss., 483, s.c., 35 South., 826, The jury were not warranted in bringing in the verdict which they did against the appellants, hence the judgment should be reversed. It is earnestly contended by the learned counsel for the appellants that the first instruction granted to the state was faulty in that it authorized the jury to find the appellants guilty under certain conditions, if the jury believed that the attack was made with deadly weapons, without specifying that the deadly weapons were pocketknives. This contention is founded on the fact that the indictment charges that appellants made the assault upon Harrison with pocketknives. Opposing counsel insist that since the district attorney saw proper to designate specifically the kind of knives used, such allegations in the indictment become a material and descriptive part of the offense, and must be supported by the proof, and be specifically referred to in the charges to the jury. There are two answers which may be made to this contention. In the first place, it is not at all necessary to describe the kind of weapons which were used, and the designation, “pocket,” in reference to the knives, may be dismissed as surplusage. In the' second place, it is submitted that a fair and practical view of the proof will shqw that the knives used were pocketknives. It seems to be perfectly well settled that, both at common law and under statutes which do not specify the instrument, it is unnecessary in an indictment to state the means or instrument made use of by an assailant to effectuate his murderous intent. 1 Wharton Crim. Law., 602, and authorities there cited. The recital, therefore, of “pocketknives” in the indictment, was unnecessary, and might be rejected as surplusage. It is argued, however, that if the indictment specifies the kind of instrument, it must be proved even to the most minute detail. Many larceny eases are cited by opposing counsel, but these cases-are not in point. In larceny it is essential to charge that some article was stolen, and the stolen article must be stated in the indictment. If the stolen article is described with unnecessary particularity, then such description must be proved. But in this offense the nature of the weapon need not be charged. Precedents are not wanting in support of the doctrine that upon indictment for assault with pocketknives, a similar weapon may be proved. Thus, it is said, in an Alabama case, “the indictment charges the assault to have been made with a razor. There was evidence to show that the assault was made with a pocketknife. The lower court instructed the jury in substance that it was immaterial whether the assault was made with a razor or pocketknife, and refused to charge at the request of the defendant, that if the jury had a reasonable doubt-as to the assault being made with a razor, they must acquit the defendant. It is sufficient if the substance of the charge be proven, without regard to the exact instrument used. Though the indictment charges a particular weapon, the averment is substantially proved if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged and the consequences naturally follow.” Hall v. State, 19 Ala., 32. . This statement of law has the highest sanction from Mr. Bishop, who used this language: “In homicide and other assaults there must be a not easily defined harmony of a general sort between,the allegations and proofs of the act, but the same need not be minute. Por example, it has been held that a charge of assault, ‘with a weapon, to-wit, a gun,’ is not sustained by evidence of an assault with the hand. But where the instrument proved is of the same nature as that alleged,' — ns where a homicide is charged to have be'en committed with a piece of iron, and the evidence was that it was with a piece of plank, — there is no variance.” 1 Bishop’s Crim. Proc., sec. 488, c. The law being thus, it is manifest that the state’s first instruction, which does not specify the kind of deadly weapon, is not erroneous, since all of the proof shows that the assault' was made with knives, and the principle above announced has direct and conclusive application. In the second place, it is admitted that the record, taken as a whole and fairly considered, sufficiently shows that the knives used were pocketknives. Of course, it is not necessary for the state to show by direct testimony the character of the knives. This may be inferred from the circumstances surrounding the participants, their use of the weapons, the sources from which they were procured, and other circumstances. Porter y. State, 57 Miss., 300. Much emphasis is laid by learned counsel for appellants on the fact that these appellants are charged with a joint crime, and it is insisted that the proof does not support the charge. But, in view of the state’s testimony that both aj>pellants, at the same time, in full view of each other, were pursuing Harrison with knives, and fell upon him at about the same time, both doing their best to kill him, it is submitted that the proof was ample to warrant the jury in concluding that this was a joint assault. Considering now the second charge for the state, the only complaint made by the-appellants is upon the ground that the charge is in the alternative, and that the first part of the charge should be considered separate and apart from the rest, and that, so considered, appellants are deprived of the right of self-defense; but the conclusive answer to this objection is that both the first and second alternatives are modified equally by that part of the charge which begins with the words, “with the intent to kill and murder him,” etc. So considered, the charge is not subject to the criticism offered.