41 Fla. 285 | Fla. | 1899
In October, 1898, the plaintiff in error was indicted, tried and convicted for an assault with intent to murder. The indictment charged that the defendant in and upon one C. W. Marks, with a certain deadly weapon, to-wit: a pistol, with which he was armed, and in one of his hands had and held, feloniously and from a premeditated design to effect -the death of Marks, an assault did make with the intent and premeditated design him the said
From the State's evidence it appears that on September 22, 1898, Marks was master of the steamer Owens, a vessel plying the Apalachicola river, and bound from Apalachicola to Chattahoochee. The vessel left Apalachicola about 6:30 p. m., and arrived at Brickyard landing about 10 o’clock, where she stopped to put off passengers and freight. Defendant was engaged in logging, and on this occasion he with other raftsmen were passengers on the steamer, destined for Brickyard landing. After the vessel had discharged her freight and passengers at this landing she backed out into the river and started on her way. Marks was standing on the hurricane deck just forward the smokestacks, while two or three other persons were on the same deck but back of the smokestacks. When the vessel had reached a distance of forty or forty-five yards from the landing the defendant from the shore exclaimed that his snubline had not been put off, and that it should not be carried away. He hallooed to. the vessel’s stevedore to bring off the line and the latter replied that he knew nothing about it. Defendant said the boat should not carry off the line and by God he would make it come back. He then ran twenty-five or thirty feet to the warehouse porch where there was some plunder and came back with a revolver which he fired once in the direction of the boat and twice up the river ahead of the boat, and hallooed to the stevedore to take care of his line and put it off on the return trip. Defendant and others on shore then fired their pistols' in the air. About
The defendant offered no testimony in his behalf. He objected to all evidence relating to his firing the pistol, on the ground that the indictment failed to allege
I. The defendant argues that as' the indictment failed to allege that the pistol was loaded or discharged, or attempted to be discharged, it must as a natural result of such deficiency of allegation be construed to mean that the assault was accomplished in some manner consistent with the possible use of an unloaded weapon of that character, as by striking with it, and that therefore the evidence of its being discharged varied from the allegations of the indictment as thus construed. If the indictment had alleged that the assault was committed with an unloaded pistol, the defendant’s argument would have much tO' commend it, but there is no such allegation in this indictment, and it would be doing great violence to the language used to give it the construction insisted upon. To allege that an assault was made with a pistol, does not imply that it was not loaded, nor that the assault was not committed by shooting. It means of course that the assault was committed with the designated weapon in some manner consistent with the use to which such weapon is capable of being- put, but an assault by shooting is certainly neither impossible, unusual, nor beyond the range of the capabilities of
II. Under the third assignment of error the defendant contends that the evidence fails to show an assault on Marks, and also that it fails to show a premeditated design to kill him. The statute under which this indictment was drawn does not require that the assault be accompanied by a battery in order to constitute the offence of assault with intent to commit a felony. It is of no consequence, therefore, that Marks was not struck by the pistol ball, if it be found that he was assaulted; and the evidence clearly proves an assault. The defendant fired in the direction of the boat upon which Marks and other persons were traveling at the time, and the defendant’s expressed purpose in firing the shot was to make the boat come back. The boat appears to have been within carrying distance of the weapon, and circumstances were in evidence tending to show
The judgment is affirmed.