* Corpus Juris-Cyc References: Homicide, 30CJ, p. 118, n. 87; p. 123, n. 72, 75. As to necessity of charging felonious intent to commit crime in indictment for homicide, see 13 R.C.L. 898. Appellee, May, was indicted in the circuit court of Sunflower county of the crime of shooting with intent to kill *Page 83 and murder. Appellee demurred to the indictment, assigning five causes, as follows:
"First. The indictment charges no crime under the law.
"Second. The indictment attempts to charge the defendant with the crime of assault and battery with intent to kill and murder, but is badly defective, in that it fails to charge felonious intent on the part of the defendant.
"Third. The crime attempted to be charged was a misdemeanor at `common law,' and is raised to degree of felony by section 771 of Hemingway's Code, and the felonious intent is necessary to raise the crime from the lower to the higher degree, and the indictment does not charge the felonious intent, or attempt to charge.
"Fourth. The indictment, if permitted to stand as an indictment for misdemeanor, and the defendant required to proceed to trial thereon, would be highly prejudicial to his rights, because the indictment attempts to charge him with a grave crime — a felony under the statute — which charge would be overshadowing and influential throughout the trial.
"Fifth. If the defendant is required to go to trial on the indictment, he would be denied that presumption of innocence guaranteed to him under the law, and at the very threshold of his trial put to the task of assuming a burden, disproving the grave crime attempted to be charged against him."
The demurrer was sustained. From the judgment sustaining the demurrer, the state prosecutes an appeal.
The material part of the indictment follows:
"W.L. May, late of the county aforesaid on the 15th day of March, A.D. 1926, with force and arms, in the county aforesaid, and within the jurisdiction of court, did unlawfully, with malice aforethought, feloniously and willfully shoot at W.C. Denman, with a deadly weapon, to-wit, a pistol, with the intent to kill and murder him, the aforesaid W.C. Denman." *Page 84
The indictment was founded on section 1043, Code of 1906 (section 771, Hemingway's Code), which follows:
"Every person who shall be convicted of shooting at another, or of attempting to discharge any firearms or air-guns at another, willfully; or of any assault or assault and battery upon another with any deadly weapon or other means or force likely to produce death, with intent to kill and murder or to maim, ravish, or rob such other person; or in the attempt to commit any murder, rape, manslaughter, burglary, larceny, or other felony; or in resisting the execution of any legal process, or any officer or private person lawfully attempting to arrest him or any other person — shall be imprisoned in the penitentiary not more than ten years, or shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than one year or by both."
The statute defines a number of separate and distinct crimes.Jimerson v. State, 93 Miss. 685, 46 So. 948. One of the crimes defined by the statute is an assault upon another with a deadly weapon or other means or force likely to produce death, with intent to kill and murder. The unlawful shooting at another with a pistol is an assault. The indictment charged that appellee did, with malice aforethought, feloniously and willfully shoot at W.C. Denman with a deadly weapon, a pistol, with intent to kill and murder him (the said Denman). We think it clear that the grand jury attempted in the indictment to charge appellee with the crime of an assault with a deadly weapon, a pistol, with intent to kill and murder, which, under the statute, is a felony, not a misdemeanor.
Appellee argues, however, that under the law the indictment failed to sufficiently charge the felony, because it failed to charge that the intent to kill and murder was a felonious intent; that the gist of the offense was the intent with which the shooting was done, and therefore the indictment should have charged that the shooting was *Page 85 done with the felonious intent to kill and murder. We agree with appellee that it was necessary that the indictment charge that the intent with which the shooting was done was a felonious intent; but we think the language of the indictment, properly construed, so charged. It charged that the shooting was done unlawfully, with malice aforethought, feloniously, and willfully, "with a deadly weapon, to-wit, a pistol, with the intent to kill and murder him, the aforesaid W.C. Denman." We do not think it was necessary to repeat the word "feloniously" immediately preceding the words "intent to kill and murder him, the aforesaid W.C. Denman." The indictment had already charged that the shooting was felonious and with malice aforethought. According to the proper rules of construction, that language qualified the language that followed it in the indictment. In Winston v.State, 127 Miss. 477, 90 So. 177, which was a homicide case, it is true, what was said by the court, in part, is in point here. The court said:
"There may be an intentional killing without it being a crime, but we cannot conceive of a felonious killing which would be lawful."
The charge in the indictment in that case, that the shooting was done with malice aforethought and feloniously, carried with it necessarily that the intent to kill and murder was a felonious intent.
We think the indictment was good under the law.
Reversed and remanded.