The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-11-19
SUPREME COURT DECISIONS
OCTOBER TERN. 1851
Isaac MOORE,
Tnn CrAnA

~
ISAAC MOORE,
THE srArx.
Appeal from the Circuit Court OF Kinds
county, Hon. s..s. Calhoon, Judge.
At the July term, 1880, Of the Circuit
Court Of the First District OF Kinds county,
appellant was tried on an Indictment for
murder. The indictment followed the
language Of the Statute, charging that
the defendant did wilfully, fcloni-
ously and Of his own malice afore-
thought, kin and murders deceas-
ed. Defendant plead "not guilty." and
was acquitted. He was then indicted for
assault and battery upon deceased. To
this Indictment defendant pleaded aute.fois
acquit.
To this plea, the State dcmurrcd and the
demurrer was sustained and the case going
to trial. defendant was convicted.
Nugcnt a. Melville, for APPELLANT
L. Brame, Attorney Goncnral pro tenA.,
Contra.
CAMPBELL, j.,
He'd
l At common law there could be no
proper conviction for misdemeanor OH
an Indictment for felony. That is chang
cd by 307S of the Code of 1880, 80 AS to
authorize verdict of guilty of the ofense
as charged or of any attempt to commit the
same ofiense or OF any inferior Offensc or
other offense, the commission which Is
necsssariEy included in the ofense charged
in the Indictment. But "there may be
manslaughter al well as murder committed
where there is no assault, no battery, no
wound inflicted" Bishop on Grim. Prac.
Vol. 2. 53S, and therefore assault and bat.
terry or assault is not nee ssarily inciudedin
a charge Of murder of which an assault may
or may not have been constituent, accord
ing to the circumstances.
9 Where an indictment for murder or
manslaughter charges an assault and bat
terry, or an assault, the verdict may be for
either according to the proof, but under
an indictment for murder or manslaughter
in the form permitted by 3016 Of the Code
of 1880, it is not allowable to render YER
dict for assault and battery or an assault,
neither Of which is charged in terms by
the indictment or necessariLy included In
the offence charged.
3 To warrant convection the allegations
of the indictment must embrace the oifcnse
or IL must be aecsssariLy included in the
offense specifically charged otherwise the
prlbOncF ullSnt DC IOuuu Suilty uuu Dc
punished, without being accused of the
offence Of which he was convicted, which
is not to be permitted. II ia the con-
stitutional right Of the accused to
demand "the nature and cause OF
tho Accusation" In all criminal &C.
cusations against him, and he cannot be
lawfully convicted OF any offense not in
cluded In such accusation.
4. II under the former indictment for
murder, which did not contain M allega-
ton of an assault. and battery, but charged
that the defendant did "willfully, fol0ni-
otisly and Of his own malice aforethought,
kill and murder deceased, the appellant
had been found guilty of assault and bat
terry or either, we would not have sustain
ed such conviction, because Of the absence
Of an allegation in the indictment OF such
offense and because 1t is n ot necessarily in
cluded in the offensc which was charged, II
being true that murder may bo committed
without an assault and battery or either.
1t follows from these views that the de-
murrer to the special plea was properly
sustained.
Judgment affirmed.
fro BEREPoRTED.l