Duncan v. State

Citations

• 49 Miss. 331

Syllabus

<p>1. Malicious Mischief — Vebdict—Acquittal.—The indictment charges that the accused “ with force and arms; at the county aforesaid, a certain hog, of the personal property, goods and chattels of Tobe Clay, then and there being found, unlawfully, willfully and maliciously, and out of wanton cruelty, did kill, maim and wound, contrary to the form of the statute,” etc. The jury found a verdict in these words : *‘ We, the jury, find the accused guilty of the willful and unlawful IdlliDg of the hog, but not out of a spirit of mischief, revenge, or wanton cruelty. That this verdict was an acquitftl of the accused of the charge in the indictment</p> <p>2. Second Yekdict — Insteuctions.—The bill of exceptions states : “The court here instructed the jury upon the law applicable to the case, without being requested so to do, and ordered them to retire and find a verdict.” The special vordiot on the facts took the case out of the statutory definition of the offense, and it was error to instruct the jury on the l'aw and to order them to find a second verdict.</p> <p>3. Statutoby Definition of the Offense. — The Code defines two distinct attributes or conditions of malioious mischief, within one or the other of which the facts must bring a case to warrant conviction, viz : That the injury was done “ maliciously, oither out of a spirit of revenge or wanton cruelty,” or that it waa done “mischievously.” Bovisod Code of 1871, section 2708.</p>