60 Ala. 441 | Ala. | 1877
An assault with intent to murder is not a statutory, but a common-law offense. The statute, without adding to, or diminishing the elements of the offense, as it was known to the common law, by the severer punishment it inflicts, converts it from a high misdemeanor into a felony. No other facts need be proved, than such as were essential to be proved at common law. An assault, an intentional attempt by violence, without legal excuse, and without sufficient provocation, to do an injury to the person of another, accompanied by facts and circumstances indicative of an intent to take life, constitutes the offense. The intent most often must, of necessity, be inferred from the character of the assault, the want or the use of a deadly weapon, and the presence or absence of excusing or palliating facts and circumstances. If a man, in shooting distance of another, raises a gun, takes aim, and fires, and the ball enters the person of the other, a jury would be authorized from these facts, if the evidence did not show that he was excusable, or did not show palliating circumstances, or that his intent was to maim, or to wound, to infer that his intent was to murder. A man must be taken to intend that which he does, or which is the immediate or necessary consequence of his act.—2 Stark. Ev. 738; Hadley v. State, at last term. So, in all cases
Nor was there error in refusing the several instructions, that a specific intent to murder the prosecutor must be proved, there being no evidence of an intent to take the life of any other person. They were calculated to mislead the jury; and if it was intended to assert that an express intent, as contradistinguished from an intent which may be inferred or presumed from the circumstances, must be proved, the proposition is erroneous.—Moore v. State, 18 Ala. 432; Ogletree v. State, 28 Ala. 693; Allen v. State, 52 Ala. 391. It was settled in this latter case,' — and we cannot depart from its conclusions, — that the court may refuse charges which devolve on the jury the necessity of inquiring and determining whether, if death had ensued from the assault, the defendant would have been guilty of murder in the first degree. Such instructions are calculated to mislead and confuse a jury, and are essentially erroneous in point of law. The offense is complete, if there is an assault, with intent to murder the person named in the indictment, whether the attendant facts and circumstances would, if death ensued, elevate it to murder in the first, or reduce it to murder in the second degree. As we have already said, the offense is a common-law, and not a statutory offense ;• and at common law, there are no degrees in murder. These are of statutory creation, and are intended, not to alter or change the essential and distinguishing characteristics of murder as known and defined at common law, but to adapt punishment to the degree of the wickedness of design and malignity of heart each particular case may develop. Every malicious deprivation of human life was at common law, and is under the statute, murder. The only difference is in the punishment inflicted, which is graduated to the degree and malignity of the offense. It is enough to constitute the offense of assault with intent to murder, that there exists malice, which is the element of murder in either degree. If it exists in its most malignant form, as it is by statute made an essential ingredient of murder in the first degree, then the offense is more aggravated, deserving higher punishment, than would be in
The remaining instructions were also calculated to mislead the jury, and were properly refused. If appropriate to any phase of the evidence, the court would have instructed the jury that an intent to kill would not constitute the aggravated offense charged in the indictment, and would, so far as necessary, have distinguished between murder and manslaughter. This was not the scope of the instructions prayed, but, in effect, the court was asked to say, if the combat was sudden, without evidence of previous malice, the defendant was not guilty, though he may have been the aggressor, and in the course of the combat attempted to kill the prosecutor.
We find no error in the record, and the judgment is affirmed.
