Breeland v. State

Terral, J'., delivered the opinion of the court. By a bill of indictment duly returned into the circuit court of Pike county, it was charged that Oliver Breeland, William Breeland, and Pelder Crow, in said county, on the 26th day of August, A.D. 1901, did then and there unlawfully, willfully, and feloniously, by threats of injury to his person, and that of his family, and by shooting into the dwelling house of Tobias Brumfield, then and there occupied by his family, attempt to intimidate the said Tobias Brumfield into an abandonment and change of his home and employment, contrary and against, etc. These parties were jointly tried for said crime, and, being convicted and sentenced to the penitentiary, they appeal their ease to this court, and assign sundry errors in the action of the circuit court. The indictment is based upon ch. 70, laws 1898, which •provides “that any person or persons who shall, by placards •or other writing, or verbally, attempt by threats, direct or implied, of injury to the person or property of another, to intimidate such other person into an abandonment or change of home or employment, shall, upon conviction, be fined not exceeding $500, or imprisoned in the county jail not exceeding six months, or in the penitentiary not exceeding five years.” The statute above quoted makes it a felony for any person, by [530] threats, verbal or in writing, direct or implied, to the person or property of another, to attempt to intimidate such other person into an abandonment or change of his home or employment; and if the indictment above set out charges with legal precision that Tobias Brumfield had a home in Pike county, and also had employment there with the Banner Lumber Company, it must be apparent that the appellants are charged in a single count of the indictment with two separate and distinct felonies, which is not permissible under the rules of law governing this subject. But a casual glance at the indictment will disclose the want of any allegation that Tobias Brumfield was in the employment of the Banner Lumber Company. A closer inspection will verify the statement that the indictment does not charge in direct and positive terms that Tobias Brumfield had a home in Pike county. Inferentially it may be assumed that Tobias Brumfield had a home in Pike county, but the fact itself is not averred in such plain and direct terms as the rules of-law require in the essential parts of an .indictment. If the averment of the indictment had alleged the existence of Tobias Brumfield’s home in said county, it could have availed nothing towards the conviction of appellants, because there is not a line or word of proof in this record tending to show that the defendants desired Brumfield to change his home, or that the threats made by them related to that subject. The evidence in this record distinctly shows that the persons who committed this wrong, when they came to the house occupied by Tobias Brumfield and his family, and by Charles Idagee, who boarded and lodged at Brumfield’s house, and who was in the service of the Banner Lumber Company in some character not alleged or shown in evidence, they cried out: “Hey, negroes! We come to give you fair warning. No more working for the Banner Lumber Company,” and discharged their firearms into the front part of said house occupied as aforesaid; and this declaration, with the accompanying shooting, clearly implied, as we interpret such words and conduct, a threat of personal injury to the persons there being who were in the em [531] ployment of the Banner Lumber Company; but, for want of an allegation that Brumfield was in the employment of the Banner Lumber Company, the proof of such employment could have availed nothing. For, while in civil cases proof of a clear right of recovery will support a cause of action thus proven, and uphold a judgment rendered thereon, though not stated in the pleading, because such matter amounts only to a variance, which will not avail the losing party, because by not objecting he has waived his right to have the matter pleaded upon the record, yet in criminal cases the cause of accusation must be stated in writing, and charged in such terms as import a specific crime, and upon such charge a conviction, if had, must rest. But in fact Tobias Brumfield was not in the employment of the Banner Lumber Company. In his evidence he distinctly and repeatedly says he was not in its employment. Ellis Brumfield, the only other witness on that point, testified that Tobias Brum-field engaged to take employment with the Banner Lumber Company the coming week; and from his evidence it is perfectly manifest that at the time of the alleged offense Tobias Brum-field was not in the employment of the Banner Lumber Company. We think it unnecessary that the indictment, under this act, should state whether the threats were verbal or in writing— whether direct or implied — as these matters relate merely to the proof. In this case the threat is implied, arising from the declaration, “Hey, negroes! We come to give you fair warning. No more working for the Banner Lumber Company,” accompanied by the shots fired into the house where the employees of the Banner Lumber Company were; and the threat implied was, “Quit the employment of the Banner Lumber Company, or take the contents of our firearms.” We think it essential, under this act, that the indictment should define in some general terms the nature of the business conducted by the Banner Lumber Company, and should allege that the persons attempted to he intimidated were in the employment of the Banner Lum532 her Company, in the business specified as being conducted by it, and, of course, it should be a business allowed by law; and the indictment should describe the Banner Lumber Company, either as a corporation or a firm of individuals, according to the usual course of pleading on that point. If both crimes created by the act are intended to be charged, they should be set out in separate indictments, or in separate counts. Without noticing in detail all the complaints made, we think what we have said will be a sufficient guide to the court in reference to any further proceedings in this case. Reversed and remanded.