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LETHEL JOSHUA v. STATE OF MISSISSIPPI

JANUARY 25, 1984

LETHEL JOSHUA
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, BOWLING AND ROBERTSON

BOWLING, JUSTICE, FOR THE COURT:

Appellant was tried and convicted in the Circuit Court of the Second Judicial District of Hinds County. As hereinafter discussed, we can only surmise

with a reasonable degree of assurance regarding the crime for which he was indicted and convicted. The indictment was fatally defective, the error was fully preserved and we are mandated to reverse and remand the cause for proper indictment.

 It is elemental that every person accused of a crime has the legal right to be informed properly of the charges under which he is to be tried. The cause grew out of a purported altercation that occurred on the night of July 31, 1981, near Utica, Mississippi, on Highway 18. According to the record appellant was driving a van owned and operated by him and occupied by three other persons. The vehicle was stopped by a member of the Mississippi Highway Patrol. The testimony is conflicting as to what occurred. We recite only that pertaining to the reason the cause is being reversed and remanded. The state's evidence was to the effect that appellant at one time struck the officer with his fist; there was a tussle or altercation on the edge of the roadway during which the officer's revolver fell from its holster; the appellant picked up the revolver. According to the patrolman, the revolver was pointed at him and a threat was made to shoot him. The officer fled from the scene. The testimony of the defense was that certain actions occurred at the scene but there was no effort to shoot the officer and no assault made on the officer.

 We point out the above brief statement to emphasize that the state's evidence tended to show a number of overt acts committed by appellant.

 Appellant evidently was indicted under the terms of Mississippi Code Annotated, Section 97-3-7 (2) (1974). This section provides penalties for" aggravated assault ". It was passed into law under Chapter 458 of the Laws of 1974. Although the code section was not mentioned in the indictment, it is clear, as stated above, that the charge was intended to come within the provisions of the above numbered code section which provides as follows:

 97-3-7. Simple assault; aggravated assault.

 (2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly

 or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

 The indictment under which appellant was charged read as follows:

 The Grand Jurors for the State of Mississippi, taken from the body of good and lawful persons of the Second Judicial District of Hinds County, in the State of Mississippi, elected, impaneled, sworn, and charged to inquire in and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That Lethel Joshua a/k/a Josh in said District, County and State on the 31st day of July, A. D. 1981, did, with intent, wilfully, unlawfully and feloniously attempt to cause serious bodily injury to the body of Dennis Wayne Abel who was then and there a duly appointed and presently acting law enforcement officer, to-wit: a sworn officer of the Mississippi State Highway Patrol, being then and there engaged in the performance of said law enforcement officer's official duties, he/she the said Lethel Joshua a/k/a Josh then acting knowingly and recklessly under

 circumstances manifesting extreme indifference to the value of human life.

 It is noted that the only charge in the indictment is that the appellant did" attempt to cause serious bodily injury. . . . "Prior to trial appellant filed a motion to quash the indictment alleging that it did not set out any overt acts allegedly committed by appellant in making his attempt or any other facts sufficient to inform appellant of the acts he did under his attempt to commit a crime.

 In a number of cases we clearly have set forth the requisites of an indictment under a charge of an attempt to perform a criminal act. In Bucklew v. State, 206 So. 2d 200 (Miss. 1968), we held that our statutory law requires proof of an overt act in order to sustain a conviction of an attempt to commit a crime. See also, Jackson v. State, 420 So. 2d 1045 (Miss. 1982); Ford v. State, 218 So. 2d 731 (Miss. 1969); ...


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