154 P. 589 | Wyo. | 1916
An information was filed in the office of the clerk of the district court of Carbon County charging Charles Ivey as' defendant, and who will be so designated here, with the crime of assault and battery with intent to commit murder in the second degree. Upon the trial the jury returned a verdict of guilty of assault and battery with intent to commit manslaughter. Judgment was pronounced 011 the verdict and the defendant brings error.
“Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and shall be imprisoned in the peniten*8 tiary for any term not less than twenty years, or during life.”
Section 5793, id., defines manslaughter as follows, viz:
“Whoever unlawfully kills any human being without malice express or implied, either voluntarily upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.” In the original statute enacted in 1890 (Sec. 17, Chap. 73, S. L. 1890) the word following “malice” in this section is “express” instead of “expressed.”
The crime with which the defendant was charged in the information is defined in section 5795, id., which reads as follows: “Whoever perpetrates an assault, or assault and battery, upon any human being with intent to commit a felony, shall be imprisoned in the penitentiary not more than fourteen years.” It is the specific intent to kill which accompanies and lifts the assault or assault and battery to the grade of a felony and that is the gravamen of the offense, and if it cannot exist in the nature of the case then there is no such crime. It will be observed, however, that in order to constitute manslaughter as a separate degree of criminal homicide the act of killing must be upon a sudden heat of passion and the outgrowth of such passion. The word voluntary as used in the statute has a legal meaning which has been construed by different courts under similar statutes. The word denotes the condition of the mind at the time of the homicide. It negatives accident or absence, of intent to do the act complained of. It is the opposite in meaning of involuntary. The accused wills the act, — that is, intends the act and if such intent accompanies the overt acts to carry such intent into effect the intent is co-extensive as a matter of criminal pleading with the act charged to have been accomplished.- We are of the opinion that one who upon a sudden heat of passion aroused by great and sufficient provocation, but without malice, hut as the result of the passion so aroused solely, voluntarily assaults an
The defendant was present at the preliminary examination with his counsel, was confronted by the witnesses, was given an opportunity to cross-examine, and subjected the witnesses to a searching cross-examination. We discover nothing in the transcript of the evidence, the correctness of which is not questioned, which would indicate
Conceding that the showing of the facts necessary to the admission of such former evidence should have been-made by oral testimony instead of by ex parte affidavit of the prosecuting attorney, the introduction and reading of the affidavit was not objected to. The only objection was after it had been read, such objection being that a sufficient foundation had not been laid. This we understand to refer
Qther assignments of error are here presented, but as the questions may not arise in another trial of the case we do not deem it necessary to discuss them. The judgment will be reversed upon the erroneous instruction above discussed and the case remanded for a new trial,
Reversed and Remanded.