
    State of Mississippi v. Jefferson Spigener et al.
    [50 South. 977.]
    Ceimihai Law awd Peoceduee. Assault 'and battery. Cowhide, etc. Code 1906, § 1044. Indictment. Simple assault and battery.
    
    An indictment charging that defendant assaulted and heat another with “leather bridle reins,” while armed with a pistol, with intent to intimidate the party assaulted and heat and prevent him from defending himself:—
    ¡(a) Is not good as one for the offense defined by Code 1906, § 1044, making it a felony for a person to assault and heat another, under the circumstances charged, with a “cowhide, whip or stick;” hut
    (5) Is good as one for simple assault and battery, and a demurrer thereto should he overruled.
    Feoai the circuit court of Quitman county.
    HoN. Samuel 0. OooKj Judge.
    Spigener and others, appellees, were indicted for assault and battery, and demurred to the indictment. From a judgment of the court sustaining their demurrer and dismissing the prosecution the state appealed to the supreme court. The opinion of the court sufficiently states the facts.
    
      George Butler, assistant attorney-general, for appellant.
    The indictment is in two counts. In the first the deadly weapon is designated, in the second it is described as unknown. Such indictment is substantially the same as that in the case of Lawson v. State, 62 Miss. 556.
    It seems to be no longer necessary in this state that the indictment must follow the precise language of the statute defining the crime. 'Williams v. State, 42 Miss. 328, has long since been overruled. It is now sufficient if the indictment be substantially the same as the statute. Bichburger v. State, 90 Miss. 806, 44 South. 772; State v. Presley, 91 Miss. 377, 44 South. 827.
    
      Tbe first objection to tbe indictment is tbat it does not allege that appellees bad a pistol in tbeir possession at tbe time of tbe assault or beating, but it is, however, alleged in tbe indictment tbat tbe appellees were “then and there armed with a deadly weapon.” It is difficult to see bow one could be armed with a deadly weapon without being in possession of tbat weapon. Tbe indictment in this regard, while not in tbe literal language of tbe statute, embraces tbe very idea conveyed by tbe statute, and it sufficiently shows tbat appellees were in tbe possession of a deadly weapon. It is next objected by appellees tbat tbe indictment do<?s not allege tbat tbe assault or beating was unlawfully, wilfully, and feloniously made. It is not necessary, of course, to charge tbe assault to have been unlawfully made, and tbe indictment does charge it to have been wilfully, and felon-iously made. 2 Bishop', Ofim. Law. 58.
    Tbe next objection urged by appellees, is tbat tbe indictment does not charge a felonious intent. It will be noted in this connection tbat tbe indictment is in tbe language of tbe statute, and in cases of aggravated assault, Mr. Bishop says: “It is sufficient to state tbe intent in tbe ordinary way.” 2 B'ish. Grim. Proc. 64.
    Boobing to tbe forms prescribed by him in tbe various crimes-where tbe intent is an essential element of tbe offense we find tbat this indictment conforms to bis precedents, and is in exact accordance with tbe ruling of this court in tbe cases of Ward v. State, 64 Miss. 611; Mann v. State, 80 Miss. 398, both of which were prosecutions for assault with an ulterior-intent. See also-McGuire v. State, 91 Miss. 151; Bishop, Direc. & Forms, 206, 140, 141, 184, 181, 252, 460.
    It is next objected by appellees tbat it is not alleged tbat tbe assault was made with a cowhide, whip or stick, tbe instruments designated in tbe statute. Tbe indictment alleges the assault, to have been made with “leather bridle rein.” Now it is a primary principle of law tbat tbe proof must conform to tbe alie-gation of tbe indictment ? Suppose tbe indictment in tbis case bad alleged tbe beating to have been made with a cowhide, or witb a whip and cowbide, and tbe proof bad shown that tbe assault was, in fact, made witb a leather bridle rein, would tbis court ever bold, or would any other court of good repute bold, that tbe offense was not proven ? lam familiar witb tbe bolding of tbe Oregon court in tbe case of State v. Taylor, 50 Ore. 449, 90 Pac. 252; and tbe case of Higginbotham v. State, 50 Ala. 133, tbe only two cases I have been able to find bearing on tbis point, wherein it was held that a similar allegation in an indictment under tbis statute, was not sufficient to bring tbis crime within tbe statute; but it will be noted that tbe statute in these states provide that if any person assault or beat another with a cowbide, whip, or stick or like thing and even then tbe decision of tbe court was an unnecessary refinement. Tbe Alabama court in tbe case of Nutt v. State, 63 Ala. 180, remanded tbe cause because of a mistake in making an “a” for an “o” in tbe name of the deceased, in tbe certified copy of tbe indictment served on tbe defendant. Tbe bolding of tbe Oregon court in Taylor v. State, supra, follows tbe Alabama court.
    If tbis ground of tbe demurrer is good, then unless tbe beating is done witb a cowbide, a whole cowbide, a whip, or a stick, there can be no conviction. One may be beaten witb a leather strap, or a strip of leather, made from a cow bide or other like instrument, witb impunity, or, at least, without violating tbis provision of tbe law. Certainly such literalness is absurd.
    We submit therefore, that tbe indictment is sufficient under tbis statute. In any event tbe demurrer should not have been sustained because tbe indictment certainly contains a valid charge of assault and battery, and, tbis being true, then, under tbe Oregon and Alabama cases, supra, it was a valid indictment, and tbis is in direct accord witb Mr. Bishop. 2 Bishop, Grim. Proc. 63.
    
      
      Brewer & Wattains, for appellees.
    It is true, as urged by tbe state, that it is no longer absolutely necessary for an indictment to follow the exact language of the statute charging the crime. Still, however, indictments framed under penal statutes must fully state all of the circumstances which constitute the definition of the offense charged in the statute. Lewis v. State, 49 Miss. 354; Dees v. State, 68 Miss. 601.
    The general rule is that the charge must be so laid in the indictment as to bring the case precisely within the description of the offense set forth in the statute. 22 Cyc. 335; Harrington v. Stale, 54 Miss. 490; Roberts v. State, 55 Miss. 421.
    Does the indictment meet the requirements of the above authorities? The statute defines the crime as an assault with a “cowhide, whip or stick;” while the indictment charges that the appellees assaulted the injured party with “leather bridle reins.” Are “leather bridle reins” the same as a “cowhide ?” It is true that such bridle reins might be used, in method similar to a cowhide, in chastising a person. Highly penal statutes are however not to be aided by speculative presumptions.
    If the words “leather bridle reins” can be considered synonymous with the words of the statute, then practically any instrument that one may handle may be held to be likewise within the scope of the statute.
    The cases cited-by the assistant attorney-genei'al, State v. Taylor, SO Ore. 449, and Higginbotham v. State, 50 Ala. 133, are not quite in point, since they were based on statutes wherein it was provided that the offense should be complete if the injured' person wás assaulted or beaten with a cowhide, whip, stick, or other like thing. Bridle reins might possibly come under this last general phrase. Our statute however has no such general inclusive expression.
    Penal statutes are to be most strictly construed.' But even a liberal construction of the statute will be insufficient to uphold the indictment. We question the similarity of the indictment in tbe present case witb that in the case of Lawson v. State, 62 Miss. 556, referred to by the assistant attorney-general. Such cited case is not in point, Lawson being shown to; have used a whip in making the assault.
    This is not an indictment under the common law. Code 1906, ■§ 1044, must be followed strictly.
   Whitfield, C. J.,

delivered the opinion of the court.

The appellees were indicted under Code 1906, § 1044, which is in the following words:

“1044 (968). The Same; With Gowhicle, Whip> etc. — If any person assault and beat another with a cowhide, whip, or •stick, having at the time in his possession a pistol, or other •deadly weapon, with intent to intimidate the person assaulted, •and prevent him from defending himself, he shall, on conviction, be imprisoned in the penitentiary not longer than ten years.”

The indictment, in the first count, omitting the formal part, is as follows:

“That Jeff Spigener, S. J. Spigener, Walter Denham, and Bud Holland, late of the county aforesaid, on the 8th day of March, A. D. 1909, with force and arms, in the county aforesaid, and'within the jurisdiction of this court, being then and there armed with a deadly weapon, a pistol, did then and there wilfully and feloniously assault and beat John Ooekran with leather bridle reins, with the intent of them, the said Jeff Spigener, S. J. Spigener, Walter Denham, and Bud Holland, then and there wilfully and feloniously to intimidate the said John Ooekran and prevent him-from defending himself, against the peace,” etc.

It will be observed that the statute provides, “If any person ■shall assault and beat another with a cowhide, whip, or stick,” etc.; and it will be further observed that the indictment does not charge the beating to have been with any one of these things, but with “leather bridle reins.” There was a demurrer interposed to this indictment on the grbund that it charged no offense-under this statute, and no- offense at all, and the demurrer was-sustained, and the state appealed; the defendants being discharged.

It will be observed that this statute does not provide, as some-statutes of this sort do, that the assault' shall be with cowhide, whip, stick, or- other like thing. We find in the case of State v. Taylor, 50 Or. 449, 93 Pac. 252, an opinion which presents the precise point for decision here involved. The statute there provided, “If any person shall assault another with cowhide, whip, stick, or like thing,” etc., and the indictment, charged that the assault and beating were with a “leather strap-,”' and upon the indictment the court said: ■ a pistol with intent to intimidate, an indictment that charged an assault with a rope, stick, or whip was held sufficient to-sustain a conviction for assault, but insufficient if the conviction had been for the offense charged. Higginbotham v. State, 50 Ala. 133. Where the instrument used is not one of those-named in the statute, then it must be so described as to bring it within the class named. Where a statute, in defining a crime committed by use of weapons, mentions certain weapons ‘or other deadly weapon,’ it is held that those named in the statute-need not be described as deadly weapons; but if another than those named in the statute is relied upon as coming within the term ‘other deadly weapon,’ it must be so averred as to bring it within that designation. State v. Sebastian, 81 Mo. 514; State v. Hoffman, 78 Mo. 256; State v. Painter, 67 Mo. 84; State v. Porter, 101 N. C. 713, 7 S. E. 902. The language of this statute is ‘with a cowhide, whip, stick, or like thing.’ If the instrument used was one mentioned in the statute, the description of it need only disclose that fact; but if, as in this case, it is some other instrument relied upon as coming within the term ‘or like thing,’ then it must be so set forth as to disclose that it is a like thing to a cowhide, whip, or stick, and it is not sufficient to refer to it as a leather strap. Therefore the information is insufficient to charge the crime defined by section 1766, B. & O. Comp., but it is sufficient to charge the crime of assault and battery.”

“The sufficiency of the indictment is also- questioned by the defendants, in that it does not charge the crime for which they were tried. In the statute of 1864 the name of this crime-is given in the index to the sections at the beginning of chapter 43, of which it is a part, and also on the margin opposite section 527, its original number, as 'assault, being armed with a cowhide,’ and was so- adopted by the legislature, and the name-of the crime thus became part of the law (State v. Vowels, 4 Or. 324; State v. Nease, 46 Or. 433, 80 Pac. 897), and 'assault, being armed with a strap,’ does not name the crime defined by this section. However, an error in the name of the crime in the preliminary part of the information is not fatal, if the charging part is sufficiently specific. State v. Sweet, 2 Or. 127; State v. Jarvis, 18 Or. 360, 23 Pac. 251. But the-charge is, 'did assault, strike, hit, and beat one Exilda Mitchell * * * with said leather strap.’ The- allegation contains nothing to-bring the strap within the class of instruments mentioned under 'cowhide, whip, stick, or like thing.’ In Alabama, under a-similar statute [B-ev. Code 1867, § 3672], providing that an assault with a cowhide, stick, or whip, having in his possession

It will be observed that the Oregon court held the indictment good for assault and battery, as the Alabama court did in the case of Higginbotham v. State, 50 Ala. 133. We think it is clear that under our statute, under the strict rules always applied in criminal pleading, especially where a felony is charged, this defendant could not be convicted under this precise statute; the indictment charging that the assault was with “leather bridle reins,” and not charging that it was with a cowhide, whip, or stick. In the absence of a charge in the indictment that the assault and battery was with a whip, or cowhide, or stick, the thing specially named in the statute, it is not possible, within the strictness required by the rules of criminal pleading, .to uphold this indictment as a good one for the precise offense denounced by the statute; but we think it is- clear, as held in the Oregon case and Alabama case, that this is a good indictment for common assault and battery.

It follows that the judgment sustaining the demurrer is reversed, the demurrer is overruled, the case remanded, and the ■defendants will be held to answer for assault and battery simply.

Reversed.  