Thames v. State

82 Miss. 667

• Court: Mississippi Supreme Court
• Decided: October 15, 1903
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

This was a charge of assault and battery with intent to kill and murder. The court gave, among others, the following charge for the state:

“No. 4. The court charges the jury for the state that if from all the testimony in the case they believe beyond a reasonable doubt that the defendant chased Sol. Gardner with a drawn pistol and in firing distance of said Gardner, and that the defendant further fired the said pistol in the direction of said Gardner while he was so being chased by said defendant, with intent to wound or kill him, the said Gardner, then the defendant is guilty as charged, and the jury should so find.”

It will be seen that the only intent required by this charge was one to wound or kill. Neither intent to wound, nor merely intent to kill, would necessarily constitute this offense. One might intend to wound without meaning to kill, and one might intend to kill in necessary self-defense. It is essential that the intent should be to murder. The charge is fatally erroneous.

Reversed and remanded.