Lusk v. State

64 Miss. 845

• Court: Mississippi Supreme Court
• Decided: April 15, 1887
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

Where parties combine to commit crime the law imputes the guilt of each to all thus engaged, and pronounces all guilty of aDy crime committed by any in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.

If the act is not the natural and probable outcome of the common design, but is the independent act of some of the party, conceived of by them, and outside of the common purpose, those not participating in it are not responsible for this independent act.

As applied to the evidence, the instruction complained of is correct, and the verdict is the only one which could have been rendered with due regard to the evidence.

Section 1433 of the code applies to curable objections only. The defect in the indictment here is incurable. The caption fails to show where in Amite County the court was held in which the indictment was found. It is essential that this should appear from the record. Carpenter v. State, 4 How. 163; Sam v. State, 13 S. & M. 189.

The motion in arrest of judgment at the March term, 1887, brought into view the record of the organization of the court at the September term, 1885, which shows when, and by whom, and for what county a court was held, but does not show where it was held, or anything from which to conclude that it was held at the place prescribed by law.

The judgment should be arrested, and the judgment rendered is reversed, the indictment quashed, and the prisoner ordered to be held to await an indictment in a court shown by the record to be held at the place designated by law.