Thomas v. State

Citations

• 73 Miss. 46

Syllabus

<p>1. Firearms. Intentional pointing. Accidental Mlling. Conviction on indictment for mv/rder. Code 1893, 969, 1359.</p> <p>Upon an indictment for murder in the form prescribed by $ 1359, code 1892, the accused may be convicted, under $ 969 thereof, of intentionally pointing and aiming a firearm at or towards another, not in self-defense or in the lawful discharge of official duty, and discharging such firearm, thereby killing the person at or towards whom tb e same was pointed or aimed, and be sentenced to imprisonment in the penitentiary not exceeding five years.</p> <p>2. Verdict. Sentenced as for a felony. Code 1892, § 969.</p> <p>Where the verdict, on the evidence and the instructions, is manifestly a conviction of the above offense, under § 969, code 1892, which, in express terms, authorizes such finding on the trial of an indictment for a homicide, the accused should be sentenced, under the statute, as for a felony, and the action of the trial court in setting aside such sentence previously rendered, and imposing one as for a misdemeanor, will be reversed on the cross appeal of the state.</p> <p>3. Cross Appeal by State. Direct appeal by defendant. Formal cross appeal unnecessary. Code 1892, $ 39.</p> <p>Where the record shows that the state excepted to the action of the trial court in erroneously setting aside a sentence as for a felony, and imposing one as for a misdemeanor, and the defendant appeals from the second sentence, the supreme court, having the whole record before it, will review such action of the trial court, under authority of § 39, code 1892, as if a cross appeal had been formally prosecuted by the state.</p>