| Ill. | Oct 27, 1893
delivered the opinion of the Court:
This indictment was found under the 45th section of the Criminal Code, which provides that “an assault with intent to commit murder, rape, mayhem, robbery, larceny or other felony shall subject the offender to imprisonment in the penitentiary for a term not less than one year nor more than fourteen years.” To constitute the offenses, or any of them, as defined in this statute, the intent must be established, and whilst not necessary that this shall be done by direct evidence, such as threats and the like, as it may be inferred from the facts and circumstances proven, yet the specific intent is necessary to complete the offense. An assault with intent to commit murder, rape, mayhem, robbery or larceny is one which necessarily depends on deliberation, and as all these offenses which are specifically named by that section are those which -require deliberation and premeditation, it becomes a question of construction whether the term “or other felony” can include any offense other than one committed with deliberation or premeditation. When a section, so far as it particularizes, has reference entirely to offenses committed with a deliberate intent, general language referring to any other felony in like manner has reference to offenses committed with premeditation or deliberate intent,—that is, with what is included as legal premeditation or deliberation.
By section 191 of the Criminal Code of this State manslaughter is defined as follows: “Manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever. ” To reduce the felonious killing of a human being from murder to manslaughter there must be no implication of malice from facts and circumstances proven, and there must be no deliberation whatever. Where a deliberate intent must be found to exist to constitute the act criminal, it is impossible that it should be found to exist without reflection or premeditation. In this case the intent with which the assault was committed is a necessary fact to be shown or implied to constitute the crime. When it appears there was an intent to take life, either express or implied, where the killing would not be excusable or justifiable, and an assault is made with that intent, then it would be an assault with intent to commit murder. It would follow, therefore, that for one to assault another with intent to commit manslaughter would be a contradiction in terms. The People v. Lilly, 43 Mich. 521" date_filed="1880-06-09" court="Mich." case_name="People v. Lilley">43 Mich. 521.
It was error to overrule the motion in arrest of judgment. The judgment is reversed and the cause remanded.
Judgment reversed.