Danny Kelly was convicted of murder in the court below and sentenced to life imprisonment from which he appeals.
The indictment, omitting the formal parts, reads as follows: "that Danny Kelly . . . on the ____ day of June, A.D. 1947, with force and arms in the County, District and State aforesaid, and within the jurisdiction of this court, unlawfully, willfully, feloniously and of his malice aforethought, kill and murder J.T. Hilton, a human being . . .".
It will be noticed that the indictment omitted the word "did" before the words "kill and murder" and said word does not elsewhere appear in the indictment. *Page 87
The appellant failed to demur to this indictment. Section 2449, Code of 1942, reads as follows:
"All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward; and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared."
There was a motion for a new trial, but the insufficiency of the indictment to charge the crime of murder is raised for the first time on the appeal to this Court.
In Cook v. State, 72 Miss. 517, 17 So. 228, there was an identical omission in an indictment for murder in that it omitted the word "did," as here, and the Court held the indictment was void and charged no offense; that Section 1354, Code of 1892, now Section 2449, Code of 1942, was not intended to deprive any citizen accused of a felony of his right to have the nature and cause of the accusation preferred against him clearly and fully stated, and any abridgement of the right to be thus informed in any substantial particular would be unconstitutional; that if the Court, by intendment, read into the indictment the word "did" so that the charge should read "did kill and murder" the deceased and thereby make the defective paper an indictment for murder, it might with like intendment, along the same line of offenses, read into the empty place in the indictment "did attempt" to kill and murder the deceased, or "did combine and conspire with John Doe and Richard Roe" to kill and murder the deceased. It was there also held that Section 1354, Code of 1892, Section 2449, Code of 1942, applies only to formal defects that may be amended without touching any matter of substance, does not apply to defects touching the substance, and that no averment of any indictment, which goes to the very essence *Page 88 of the offense, may be dispensed with by the state, or waived by the accused.
Since the decision in 1895, this Court has closely adhered to the principles announced in the Cook case. In Hall v. State,91 Miss. 216, 44 So. 826; Id., Miss., 44 So. 810, the trial court, over defendant's objection, permitted the district attorney to insert the word "did" in an indictment for murder after the case had been called for trial, but on appeal this Court held the defect was one of substance and not amendable, and reversed this judgment and quashed the indictment. Also see Moore v. State,91 Miss. 250, 44 So. 817, 124 Am. St. Rep. 715.
In McCearley v. State, 97 Miss. 556, 52 So. 796, the word "did" was omitted from an indictment for burglary, and the rule in the Cook case was followed and the indictment was quashed. See also Buchanan v. State, 97 Miss. 839, 53 So. 399, 400, where it was held that the omission of the word "malice" from a murder indictment is fatal.
In Willis v. State, 113 Miss. 838, 74 So. 677, an indictment for attempt to murder was held fatally defective for omitting the word "did" before the word "attempt". See also Herron v. State,118 Miss. 420, 79 So. 289; Crosby v. State, 191 Miss. 173,2 So.2d 813.
(Hn 1) It is true that the objection to the indictment before us was not raised in the lower court and is being raised for the first time here on appeal, but the indictment under consideration is wholly void for omitting the word "did". It cannot be waived and its validity can be challenged for the first time on appeal. Crosby v. State, 191 Miss. 173, 2 So.2d 813; Herron v. State,118 Miss. 420, 79 So. 289; Cook v. State, 72 Miss. 517, 17 So. 228, 229.
Section 26 of the Constitution of 1890 secures to the accused such a specific description of the nature and cause of the accusation as will enable him to make preparation for his trial, and also such identication of the *Page 89 offense that he may be insured against a subsequent prosecution therefor. Section 27 of the Constitution places upon the grand jury, and the grand jury alone, the authority to present the charge of murder. An indictment for murder omitting the word "did" presents no accusation of any offense and is void. We cannot make it valid here, for, under our scheme of government, this Court cannot make an invalid into a valid indictment by intendment. The presentation of a valid indictment is the function of the grand jury, and the grand jury only. We repeat what was so ably said by Judge Woods in Cook v. State, supra, "Regretting the necessity of ever reversing any judgment after full trial, unless upon the merits, we yet must not forget that it is our sworn duty to maintain unbroken the constitutional safeguards of the lives and liberties of the people."
The judgment below will be reversed, the indictment quashed, the cause remanded, and the accused held to answer any indictment that may be found.
Reversed and remanded.