Willis v. State

Cook, J., delivered the opinion of the court. The question in this case is: Did the indictment preferred against the defendant charge any crime known to the law? Omitting the formal part of the indictment, the offense attempted to be charged is in these words: [844] “That Oscar Willis, on the 5th day of September, 1916, in the county and district aforesaid, willfully, felo-niously and maliciously, then and there attempt to shoot and wound one V. K. Eeed with a deadly weapon, to wit, a shotgun, intending thereby with malice aforethought to kill and murder the said V. K. Eeed, against, ” etc. It will he observed that the indictment does not charge that the defendant attempted or did attempt to shoot V. K. Eeed. The omission of the word “did” has been held to be a fatal error in three cases heretofore decided by this court: Cook v. State, 72 Miss. 517, 17 So. 228; Hall v. State, 44 So. 810; McCearley v. State, 97 Miss. 556, 52 So. 796. It is conceded by the attorney-general that the case must be reversed if we follow these decisions. It is insisted that the decisions referred to are extremely technical, and should be overruled. We do not concur in this criticism of the decisions and decline to overrule them, and the judgment of the trial court is therefore reversed, and the cause remanded. Reversed and remanded. IIoldeN and SteveNS, JJ., dissenting.