Canterbury v. State

Citations

• 90 Miss. 279
• 43 So. 678

Syllabus

<p>1. Criminal Law and Procedure. Assault with intent to murder. Deadly weapon. Indictment.</p> <p>An indictment for an assault and battery with intent to kill and • murder, charging that the offense was committed with a deadly weapon, is not defective for failure to specify the particular weapon used.</p> <p>2. Same. Altercation ended. New one.</p> <p>Defendants who, after an altercation has ended, follow a departing adversary and fall upon him, when they are in no danger real or apparent from him, and stab him with knives until restrained by others are guilty of assault and battery with intent to kill and murder.</p> <p>3. Same. Instru.ctions.</p> <p>An instruction is erroneous and should be refused if there be no evidence of which to predicate it.</p> <p>4. Same. Bequest for instruction. Court not to give without. Code 1906, § 793.</p> <p>In a prosecution for an assault and battery with intent to kill and murder the court is without authority under Code 1906, § 793, so providing, to give an instruction to the effect that the jury might find defendants guilty of a lesser constituent offense, in the absence of a request in writing to do so.</p> <p>5. Same. Harmless error.</p> <p>It was not prejudicial error, where the evidence overwhelmingly showed a battery as well as an assault with intent to kill and murder, to instruct that the jury might convict of an assault and battery with intent to kill and murder, upon belief from the evidence that defendants were guilty of an assault with such intent.</p>