The respondent was tried upon an information which charged him with having made an assault upon one Horace McKenzie, with intent then and there etc. to kill and murder him. Under instructions the respondent was found guilty of an assault with intent to commit manslaughter. The case comes here on exceptions before judgment, and while quite a large number of exceptions were taken and have been presented in this court, but few will be considered, as they reach the merits.
After respondent reached the straw-stack, he turned around, took a knife out of his pocket, made some threat and advanced towards McKenzie. After he had advanced one or two steps he was caught by a bystander, and there is some question as to whether the knife at this time was open or not, and witnesses testified that he was then ten to fifteen feet distant from McKenzie — the person assaulted, — and that respondent then put the knife in his pocket. This practically ended the 'matter. The court as requested by the prosecuting attorney instructed the jury:
“An assault is an attempt or offer with violence to do a corporal hurt to another; an offer to inflict bodily injury by one who is rushing upon another, is an assault although the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness to believe that he is in immediate danger of receiving such threatened injury, and _ any intent to commit violence, accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance. And in this case, if Lilley, being within ten, fifteen or twenty feet of McKenzie, drew his knife from his pocket and commenced to open the same, and started towards McKenzie in a violent manner, threatening that he would do him bodily injury, and after advancing towards him a few steps
The court declined to charge—
Sixth. “An assault in law is an effort to strike or cut within striking distance, and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance stopped and voluntarily abandoned his purpose, or if before coming within striking or cutting distance was stopped by others and then abandoned his purpose, it would not constitute an assault in law.”
Seventh. “In order to constitute the crime of assault with intent to murder, the attempt to strike or cut must be within striking or cutting distance; and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance stopped and voluntarily abandoned his purpose, or before coming within striking or cutting distance was stopped by others, and then voluntarily abandoned his purpose,/it would not at law constitute an assault with intent to niurder, as charged in the first and second counts in the information.”
Eighth. “If the jury find that the prisoner took out his knife, but did not open it, or, if opened by him, he did not attempt to cut McKenzie with it, or if they find that the prisoner, before coming within striking distance, voluntarily closed the knife or surrendered it to Dillman, there was no assault, and the offenses charged in the information were not committed.”
The instructions given and those refused raise the question as to what in law constitutes an assault. Beyond this it may be very questionable whether, under any authority, the instructions as given could be fully sustained, even if applied to any facts in this case; and irrespective of what may be found to constitute an assault, it may also be a matter of some question whether the requests should not have been given.
The instruction as given would seem to lay down the general proposition “that any intent to commit violence accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance.” Now there may be an intent to commit violence, and this accompanied by acts pre
What then constitutes an assault in law? It might be somewhat difficult to reconcile all the authorities upon this subject, and we shall not attempt it. Some of the tests, as putting the person assaulted in fear,’ cannot be \ relied upon, as evidently an assault may be made upon,..] a person, even although he had no knowledge of the fact ! at the time.
An assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect. Threats are not sufficient; there must be proof of violence actually offered, and this within such a distance as that harm might ensue if the party
We are of opinion, therefore, that the charge of the court as to what would constitute an assault was not sufficiently guarded and' had a tendency to mislead the jury. And, in view of all the evidence in this case, we are also of opinion that the sixth, seventh and eighth requests should have been given, and this in view of the conflict as to the distance which respondent was from McKenzie, when stopped, and of the nature and character of the alleged assault. There may have been evidence in the case tending to show that when respondent was stopped, although not then within striking distance, yet so near as to cause immediate danger if not stopped, so that a jury would have been at liberty to have found that an assault was committed, yet there was evidence tending to show that none was committed, and in view thereof these requests should have been given.
The next important question is whether in this State there is such an offense known to the law as an assault with intent to commit manslaughter. If such an offense can be committed, two things are necessary to the commission thereof, — an actual assault, coupled with an intent to take life, and this under such circumstances that the accused would not be guilty of murder if death should ensue.
The specific intent is necessary to complete the offense, and raise it above the grade of a mere assault. Wilson v. People 24 Mich. 410. While the intent must be established, it need not be by direct evidence, as of threats: it may be drawn as an inference from all the facts. People v. Scott 6 Mich. 296; People v. Potter 5 Mich. 7.
In a case of this character we have only to deal with voluntary manslaughter. This “often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it con-
Is then an intent thus formed, without malice, deliberation or reflection, but .rashly, and while the reason is obscured by passion caused by a sufficient provocation, such as the law contemplates in cases of assault with intent to commit a felony?
An examination of our statutes will show that a punishment is provided for those who shall maim or disfigure another in a certain manner, as well as those privy to
In each and every of these cases it will be seen the intent is a deliberate one. So in the section 7537, under which it is claimed this case comes, “if any person shall assault another, with intent to commit any burglary, or any other felony,” — here the assault with intent to commit the burglary, — the intent is a deliberate one. In none of these cases can the intent be one formed under such circumstances as would reduce a voluntary homicide to manslaughter. When, therefore, in a chapter and section devoted entirely, in so far as it speaks of offenses committed with a particular intent, such intent is a deliberate one, must not the general language, referring to assaults with intent to commit any other felony, in like manner have reference to cases of deliberate intent? McDade v. People 29 Mich. 50.
As this case now stands the respondent may be convicted of an assault, and a new trial must therefore be ordered.