57 Miss. 102 | Miss. | 1879
delivered the opinion of the court.
The plaintiff in error was indicted for an assault with intent to 'commit murder, and convicted by the jury of a com
It is now argued, in behalf of the plaintiff in error, that, as the evidence of Chappel warranted, if fully credited by the jury, a belief that the prisoner did not fire at the prosecutor at all, but deliberately shot in a direction in which it was impossible for the ball to strike the prosecutor; and that as the jury must have credited that evidence, in order to
While there can be no conviction, under this indictment, of an assault because of the defendant’s acts before the shooting took place, still all that transpired before that time is highly important to be considered in determining the animus of the defendant in firing the two shots. He was the aggressor from the beginning. He attacked the prosecutor with great violence without the slightest provocation, and pursued him unresisting and fleeing to escape ; and finally when the prosecutor, closely pursued and hotly pressed, stooped to pick up a bottle with which to defend himself, the accused drew a deadly weapon, and put the prosecutor again to flight, and then followed up his fleeing victim (for he can scarcely be called adversary) with a drawn pistol, and with it fired two shots, one of which at least was in the direction of the retreating prosecutor. Under these circumstances, it would require very clear and positive evidence of an intent not to kill the prosecutor before such a conclusion could be arrived at. The jury would have been well warranted by the evidence in finding the accused guilty of the crime charged in the indictment. That they failed
But there is another view equally conclusive against the prisoner. If we conclude that it is established that the shooting was without any intent to kill the prosecutor, then it must be certain that it'was done to terrify him, and to drive him from the store or street where he then was. It is shown that the accused was near enough to the prosecutor for the latter to be within range of the pistol, and that his manner was extremely hostile and menacing. There is conflict in the authorities as to whether an assault can be committed by the presentation of an unloaded gun or pistol, when there is no actual intent to commit violence on the person of the adversary. We consider it the true rule, that no assault is committed when the person against whom it is presented, knew of the condition of the gun, and also of the intent of the accused not to injure. But a very different question is raised when a gun is presented which is unloaded, or a gun is discharged with an intent not to strike the person against whom it is apparently aimed, when all the circumstances attending such presentation or discharge must indicate to him that his life is endangered, and in fact sought, by the person presenting or discharging the gun. His rights are as much violated in such a case as if the actual intent to take his life existed; and the effect upon the public peace would be just as injurious. The better rule is to hold the accused to intend to injure, so far as such intent is necessary to constitute a mere assault, whenever from the circumstances attending the assault the person against whom it is directed has reasonable ground to believe that the intent to injure exists. State v. Shepard, 10 Iowa, 126, 130; 1 Bish. Crim. Law, § 548 ; State v. Smith, 2 Humph. 457. Of course in the statutory crime of an assault with intent to commit murder, where the specific intent to murder is the gist of the offence, if that specific intent be wanting there can be no conviction of that offence. The firing of a pistol or gun by a pursuing, threatening, and enraged person in a way that necessarily produces the impression on the mind of his adversary that it is aimed at him, and that his life is endangered, would
We do not consider the case of Smith v. State, 89 Miss. 521, when construed with reference to the facts, as laying down a rule different from what is here announced, for it was evident in that case that tbe prosecutor knew that there was no real danger. Some of the expressions in the opinion of tbe majority of the court go farther than the facts warrant, and are inconsistent with what we have announced as the true doctrine. To the extent of such inconsistency that case is overruled. The doctrine of stare decisis in criminal cases cannot be carried to the extent of allowing to violators of law a vested interest in rules which have been erroneously sanctioned.
Judgment affirmed.