Gentry v. State

45 So. 721 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

The appellant was charged with an assault on N. H. Dale Avith a shotgun, Avith intent to hill and murder the said Dale. The court gave the folloAving instruction for the state: Instruction No. 2: “The court charges the jury further, for the state, that if from the evidence they believe beyond a reasonable doubt that the defendant shot at Dale at the time and place mentioned in the indictment, in such a manner as Avould evince a depraved heart, regardless of human life, then the jury should return a verdict: ¥e, the jury, find the defendant guilty of an assault with intent to kill and murder’— even though there may not have been a premeditated design to kill and.murder the said Dale, or any particular individual.” The learned assistant attorney-general, in a very able brief,, endeavors to Adndicate this charge upon the facts of the case and the general principle of law applicable to such facts. The facts in the case are simply that the appellant fired a double-barreled shotgun into a wagon filled with persons going to a picnic, and shot Dale. There is nothing to show any more reason or motive for shooting Dale, than anybody else; nor is there any testimony to show any specific purpose to shoot Dale, or any other particular person; but the testimony shows that he so fired into the croAvded wagon Avith utter recklessness and unconcern and disregard of human life, not caring whom he might kill, though not seeking to kill one, rather than another. It is, of course, a well-known general principle that if one fires into a croAvd of persons with a spirit of malignity and utter recklessness of human life, and kills any one in the crowd, he is guilty of murder, because of the recklessness and Avillfulness and malignity of the shooting generally; but this is not an indictment along that line. This is a particular indictment for an assault upon Dale with a double-barreled shotgun, with intent to kill and murder the said Dale. There can be no conviction under such an indictment as this, unless the specific intent to kill and murder the person assaulted and named in the indictment as assaulted is shown by the testimony.

The learned assistant attorney-general does not controvert this proposition, bnt seeks to meet the difficulty in this way: He quotes from 1 Wharton’s Grim. Law, p. 608, the following passage: “The firing into a body of men indiscriminately, with the intention of killing one, not knowing nor caring which, is an assault with intent to kill upon each and all. In such a case the specific intent to kill is present, and the intention to kill whoever may be reached by the missile includes all and any who may be present. The one is as much the object of his malicious intent as the other, and in such case it is no defense to the indictment that he had not selected any particular one to kill. Recklessly shooting into a crowd in an assault on several indiscriminately is an assault on each individual.” This is true enough, and if the court had limited its charge to the announcement of this principle we would unhesitatingly affirm the judgment. The argument is, and the principle is, that there must be, there must exist in the testimony, evidence that the defendant did intend to kill and murder the specific person named in the indictment; but this specific intent is furnished by the legal presumption, which is evidence, that one who so shoots recklessly into a crowd intends to kill and murder all, and per consequence any one of all. In other words, the specific intent to kill the person named in the indictment is worked out through this legal presumption. It must exist. This specific intent to kill the very person named in the indictment must be shown by evidence; but the evidence shows such intent when it shows this recklessly shooting into a crowd, which the law says shall mean an intent to kill all, and hence to kill any particular one. There is no relaxation of the principle, fundamental in every such indictment as this, that the testimony, whatever that testimony may be — the legal presumption, or the testimony of witnesses— must show the specific intent to kill the very person named, which must be established beyond all reasonable doubt. The extract from Wharton simply shows a mode of proving this, to wit, by a resort to the legal presumption above indicated; and if charge No. 2 in this case had stopped with the words, “with intent to kill and murder,” it would have been correct.

It will be noted that the charge expressly states in the first part of it that the jury must believe beyond a reasonable doubt that the defendant shot at Dale. It then concludes that, if they believe defendant shot at Dale in this reckless manner, they shall find him guilty of assault with intent to kill and murder, even though there may not have been a premeditated design to kill and murder the said Dale. In other words, in the concluding clause of the instruction the court distinctly • tells the jury that it was not necessary to show that there was a design to kill and murder the said” Dale. This was clearly fatal error. The very essence and soul of this indictment is the intent to kill and murder the very person named, Dale. That intent must exist. True, that intent may be sufficiently shown in a case of recklessly shooting by resort to the mere legal presumption that one so shooting intends to kill all, and so to kill any one in the crowd. None the less, the intent must be shown, and to charge the jury that the specific intent to kill and murder the said Dale need not exist at all is, of course, manifest error. What emphasizes the error and makes-it more plain is the fact that the jury returned actually the following verdict: “We, the jury, find the defendant guilty of an assault with intent to kill and murder as charged in the indictment, or as instructed in No. 2, and recommend to the court the lightest punishment.”

If the indictment had been drawn as it should have been, . there would have been no legal question in this case. It should have charged that he shot into a wagon wherein were Dale and divers other persons, with the felonious intent of killing some one or more of the occupants, not caring which, and in fact shot Dale.

Reversed, and remanded.