| Ark. | Oct 4, 1909
(after stating the facts). The instructions were misleading. To constitute the crime of an assault “with intent to murder or kill” under the statute (Kifby’s Dig., § 1588) a specific intent to take the life of the person assaulted must be shown. See Lacefield v. State, 34 Ark. 275" date_filed="1879-11-15" court="Ark." case_name="Lacefield v. State">34 Ark. 275; Scott v. State, 49 Ark. 156" date_filed="1886-11-15" court="Ark." case_name="Scott v. State">49 Ark. 156; Chrisman v. State, 54 Ark. 283" date_filed="1891-02-28" court="Ark." case_name="Chrisman v. State">54 Ark. 283. It takes both the “evil intent and the simultaneous resulting act” to complete a crime of this nature. 1 Bish., Crim. Daw § § 729-30-31-35.
AVhere the offense can be committed only by doing “a particular thing with a specific intent, it may be shown that at the time of doing the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime.” Chrisman v. State, supra; Wood v. State, 34 Ark. 341" date_filed="1879-11-15" court="Ark." case_name="Wood v. State">34 Ark. 341.
In Byrd v. State, 76 Ark. 286" date_filed="1905-07-08" court="Ark." case_name="Byrd v. State">76 Ark. 286, which the Attorney General cites to sustain the ruling of the court, we held that, “if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder in the second degree, just as if he was sober.”
But the case is not applicable here for the reason that it was a case of murder in the second degree, and there may be cases of murder in the second degree where no specific intent to kill is shown. As Judge Riddick says: “No specific intent to kill is necessary to constitute the crime of murder in the second degree under our statute.” “To commit murder (in the second degree) one need not intend to take life, but to be guilty of an attempt to murder he must so intend. It is not sufficient that his act, had it proved fatal, would have been murder.” 1 Bishop, Cr. Law, § 730.
The court erred in its charge. The judgment is therefore reversed, and the cause is remanded for new trial.