84 Ala. 424 | Ala. | 1887
Generally all occurences and the declarations accompanying them, having reference to and connected with the commission of an offense, though not coincident in point of time, are admissible in evidence as illustrating the conduct and motive of the accused. While the
An intent to murder is an essential element of the offense of which the defendant was convicted, the burden of proving which is on the prosecution. If the facts and circumstances were such as, if death had ensued, would have reduced the offense to manslaughter, the defendant could not have been convicted of an assault with intent to murder. The determination of the guilt or innocence of the defendant necessarily involved the inquiry, whether, if death had ensued, the offense would have been murder or manslaughter, or whether the killing would have been excusable homicide. But if murder, the inquiry is immaterial whether murder in the first or second degree, for if in either degree, the defendant was guilty as charged. — Meredith v. State, 60 Ala. 441.
To complete the offense, there must be both a wrongful act and a malicious intent — an assault and an intent to murder. A mere intent, without ability to accomplish it, real or apparent, is not sufficient. The charge given by the court, at the request of the prosecution, that “it- is the intent, unlawfully and maliciously to kill the person assaulted, which constitutes the crime of an assault with intent to murder,” when construed in reference to the evidence showing an actual assault with a loaded gun, which does not seem to have been controverted, is not obnoxious to the objection, that it asserts the proposition that the mere intent, though ability real and apparent to accomplish it may be wanting, completes the offense. It was intended, and must have been so understood by the jury, as only declaring that the intent to unlawfully and maliciously kill another is the intent to murder, which constitutes a composing element of the offense, with which the defendant is charged. Such charges may have a tendency to mislead, when there is conflict or uncertainty in the evidence of an assault having been made, and in such
Affirmed.