| Ala. | Nov 15, 1900
The defendant was indicted for an assault with intent to murder, and convicted of an 'assault.'
By force of the 'statute a defendant may be found guilty of any offense necessarily included in that with which he is charged, whether it be a felony or a misdemeanor. — Code, § 5306. That an assault is necessarily included in the charge of an assault with intent to murder is so obviously plain that it would s.eem a discussion would raither tend to obscure than to make it clearer. Without an assault, it is impossible for the offense to- be committed. Indeed, it is the initial essential to its very existence. With the assault eliminated, there is nothing upon which the intent can rest. All the intent in the world to murder can never become a crime unless, accompanied by some act or demonstration signifying an execution of the intent. It is this unlawful act or demonstration, which constitutes the assault, coupled with the intent to murder that makes the offense complete. So, then, when the indictment charges the felony, the charge of an assault being necessarily included, so far as that charge is. concerned in the case is in nowise materially different with respect to the evidence necessary to support it than had the indictment merely charged a simple assault. It is, therefore, a matter of no consequence that the assault was committed for the purpose of obtaining money from the person assaulted or for any other purpose.
The single question presented to the jury for their determination, was, whether or not, under the evidence, the defendant was guilty of an assault. And under the evidence in this case, that question was solely for the jury.
It follows [that charges numbered 6, 7 and 8 requested by defendant were properly refused.
Charge 9 was also correctly refused for the reason, if for no other, that under the evidence the jury were authorized to find that [there was a conspiracy between the
Affirmed.