Lead Opinion
In this ease the -plaintiff in error was charged by indictment with the crime of assault with intent to commit murder in the first degree. He pleaded nоt guilty and on trial by jury was convicted of the crime of assault with intent tо commit manslaughter. He was adjudged to be guilty of such offense аnd was sentenced' to serve a period of twelve months in the State prison.
To the judgment he took writ of error.
An “assault with intent to commit manslaughter” is an unlawful assаult committed in such manner and with such means as would have resulted in thе commission of the crime of manslaughter if the person assaulted had then and there died from the affects of the assault.
There are two assignments of error. The first is “The Court erred in denying the defendant’s motion for a new trial.” The second, ‘'‘The Court erred in sеntencing the plaintiff in error on the verdict as returned by the jury.”
The verdict of the jury as shown by the transcript of the record is as follоws:
*372 “We the jury, find the defendant guilty of an assault with intent to commit manslaughter.”
It is the contention of the plaintiff in error that the words “with intent,” as contained in the verdict were inserted by the trial judge after .the vеrdict was presented in. court and before the verdict was filеd. This, however, is not evidenced.by the record and it is a well settlеd rule that the allegations contained in a motion are not self proving. Therefore, the appearance оf this allegation in a motion for a new trial is not evidence of the existence of such a condition as could be considered by this Court even if the same was material.
We take it that thе verdict as it would have read without the words “with intent” inserted therein wоuld have been entirely sufficient as a basis for a judgment of cоnviction in this ease under the authority of opinion in the case of Richardson v. The State,
The motion for a new trial contains reference to сertain charges given by the coux-t which are insisted upon as сonstituting grounds for reversal. The charges complained of, if rеad alone, might be objectionable, but when they are reаd in connection in the entire charges given by the court, we do not think that the jury could have been misled by such charges and that аny improper phraseology thereof was cured by the language used in the entire charges given by the court.
The evidence was amply sufficient to have sustained a verdict of an аssault, with intent to commit a higher offense than manslaughter.
There wеre conflicts in the testimony but the jury, exercising its lawful authority, resolved such conflicts against the contention made by the plaintiff in еrror and we find no *373 reason to assume that the jury was influenced by аny improper motives or by anything outside of the evidence оr that the jury was misled to the prejudice of the plaintiff in error.
The judgment should be affirmed and it is so ordered.
Affirmed.
Dissenting Opinion
(dissenting).—I do not see how there can be as to certain classes of cases, any such offense as assault with the intent to commit manslaughtеr as manslaughter is defined by our statute. The statutory definition of manslаughter appears to eliminate the element of intent to kill, in certain eases; such as deaths resulting from culpable negligence.