26 Ill. 500 | Ill. | 1861
The only question which we think it necessary to notice is, whether the verdict is supported by the indictment. This is the verdict: “ We the jurors, find the defendant guilty of an assault with a deadly weapon, with intent to inflict a bodily injury upon the person of Emily Ann Bennett, where the circumstances of the assault showed an abandoned and malignant heart.”
The indictment was for an assault with an axe and a butcher knife, with intent to commit murder. Both these offenses are found in the fifty-second section of the criminal code. The rule of law is that where an indictment charges many acts with certain aggravations constituting a high crime, the jury may convict the prisoner of a lesser crime, consisting of only a portion of those acts or with less aggravation. The question here presented then is, does a charge of an assault with a deadly weapon, as an axe or a butcher knife, with intent to commit murder, embrace an assault with a deadly weapon, with intent to commit a bodily injury ? or, still more to simplify the proposition, does a murder embrace within it a bodily injury ? When a case of murder is pointed out without a bodily injury, we may begin to doubt; till then, we cannot.
But it does not follow that all assaults with intent to commit murder, contain within themselves assaults with deadly weapons, with intent to inflict bodily injuries, for we may possibly imagine cases where murder may be committed without the use of a “ deadly weapon, instrument or other thing,” and such was the case of Carpenter v. The People, 4 Scam. 197, as we presume from the reasoning of. the court in its opinion, although the reporter has not given us the indictment that we might judge of its true character. Nor can it be said that any motive or mental condition is required to exist in this lesser offense, which is not also indispensable in the greater, for which the prisoner was indicted. The jury found by their verdict, and so the statute required in order to constitute the crime, that “ the circumstances of the assault showed an abandoned and malignant heart,” and this is precisely the mental condition ever present when a murder is committed. We think the facts found by this verdict are embraced within the charges set forth in the indictment, and that the verdict finds all the facts necessary to con stitute one of the offenses specified in the fifty-second section of the criminal code.
The judgment must be affirmed. Judgment affirmed.
