35 Ala. 363 | Ala. | 1860
Ye do not think this record presents a case for putting the prosecuting attorney to an election of offenses. The record does not inform us that there were two offenses, or distinct acts, for which the Sfcatewould have been justified in proceeding separately. On the contrary, both acts are averred and proved in a manner to create the impression that the one succeeded the other so nearly in point of time, as to constitute in fact but one transaction.
It is no objection, that the assault in this case is averred to have been committed with a knife, and with a stick. The fact that, in one rencounter, both a knife and a stick may bo used by one and the same assailant, is conclusive to show that an indictment may charge that the assault was committed with both weapons. — Shaw v. The State, 18 Ala. 547.
An assault is an attempt, or offer, to do another pereonal violence, without actually accomplishing it. A menace is not an assault; neither is a conditional offer of violence. There must be a present intention to strike. On the question, how far the intention must be carried into actual execution, before the assault becomes complete in law, the authorities do not agree. Holding a gun in a threatening position, without any attempt to use it, or intention to do so, unless first assaulted by the adversary, is not an assault. — Blackwell’s case, 9 Ala. 79. Drawing
Wo find no case, or statement of the principle, which holds that, to constitute an assault, the defendant must actually strike at the person on whom the assault is charged to have been committed. Raising a stick, with intention to strike, so near to the party assailed as to endanger his person ; and forcing him, under a well grounded apprehension of personal injury, to strike in self-defense, or to save himself by flight, is an assault for which the party may be punished.
The indictment in this case charges, that the assault upon Berry Freeman was committed by striking at him with a stick. The proof fails to show a striking at Berry Freeman, but only shows an attempt or offlSr to strike. This record, then, presents the familiar principle of unnecessary particularity of averment. Being descriptive of the offense, it became necessary to prove it as laid. The testimony failing in this particular, there was a variance between the averment and the proof. If the indictment had charged, that the defendant made an assault, and struck at, &c., it is probable the doctrine of surplus-age would apply. But the averment did not take that form. — See Smith v. Causey, 28 Ala. 655; Lindsay v. The State, 19 Ala. 560; Commonwealth v. Gallagher, 6 Metcalf, 565 ; Roscoe’s Cr. Ev. § § 102-3-4 ; 2 Russ, on Cr. 788, 794-5.
For the variance between the averment and the proof, the judgment of the circuit court is reversed, and the cause remanded.
