Horton v. State

36 So. 1033, 84 Miss. 473

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

The refusal of the second instruction asked by the defendant was not error. Section 1426, Code 1892, provides that “on an indictment for any offense the jury may find the defendant guilty of the offense as charged or of any attempt to commit the same offense.” It is not necessary, nor would it be proper, to join in the 'indictment a second count charging an attempt to commit the crime charged.

The language attributed to the district attorney is not made known to us in the manner prescribed by law. This assignment of error, therefore, is not considered. Powers v. State, 83 Miss., 691, s. c., 36 South., 6.

It was fatal error to refuse to admit the testimony offered on behalf of defendant of his general reputation for peace or violence. This was the particular trait involved in the prosecution against the defendant, and testimony showing an established reputation for peace and quiet is especially appropriate in this class of cases. Maston v. State, 83 Miss., 647, 36 South., ; Hardtke v. State, 67 Wis., 552 (30 N. W., 723); State v. Lee, 22 Minn., 407 (21 Am. Rep., 769); Lincecum v. State (Tex. App.), 15 S. W., 818 (25 Am. St. Rep., 727).

Reversed and remanded.