Wile v. State

60 Miss. 260

Opinion

Chalmers, J.,

delivered the opinion of the court.

In every indictment for a felony the use of the word “ fel-oniously ” is essential.

It is urged that inasmuch as perjury was a crime both at common law and by statute, and inasmuch as our statute in relation to it uses the words “ wilfully and corruptly” and does not use the word “ feloniously,” that the common law requirement that the latter word must be used does not now exist, since by sect. 3099 of Code of 1880 it is provided that where any act is criminal, both by statute and at common law, it may be set out in an indictment in either the statutory or the common-law form.

The position seems plausible, but it was decided in Bowler’s Case, 41 Miss. 570, under a statute of which sect. 3099, of our present Code is a reprint, that the statute would not apply in a case where the act charged was a misdemeanor at common law and a felony by statute, and that in such cases it must be charged to have been done “ feloniously,” no matter what form of indictment was pursued.

The crime of perjury was a misdemeanor at common law and is made a felony by statute.

It follows, therefore, under the case cited, that in every indictment it must be charged to have been “ feloniously ” done.

Judgment reversed, indictment quashed, and appellant held to await further action of the grand jury of Grenada County.