| Ala. | Nov 15, 1904
The defendant was tried and convicted of an assault with intent to murder. The only
The offense charged in the indictment, viz., an assault with intent to murder, was at common law a misdemeanor, also an assault to commit murder. — Simpson v. State 59 Ala. 1" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/simpson-v-state-6509874?utm_source=webapp" opinion_id="6509874">59 Ala. 1. By our statute the former, that is, an assault Avith intent to murder, has been made a felony, Avhile the latter, an assault to commit murder, remains as it AA’as at common law, a misdemeanor.
Charge 1 requested by the defendant, in the employment of the words “assault to commit murder,” describes an offense different from the one charged in the indictment, and was, therefore, misleading in its tendency, and for this reason, if no other, was properly refused.
Refused charge 3 is bad. Premeditation is not a necessary element in the offense of an assault with intent to murder. — Wood v. State, 128 Ala. 27" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/wood-v-state-6518786?utm_source=webapp" opinion_id="6518786">128 Ala. 27.
The clause in the charges numbered 5 and 6, xiz., “the only burden on the defendant being the burden of going forAvard Avitli the testimony,” Avas enough to condemn them. The laAV in the first place imposes no such burden, and the clause Avhen analyzed is meaningless. The burden “of going forward with the testimony,” for what purpose and to what end? If it means anything, it Avould seem to mean, the burden of going forward with the testimony for the purpose of proAfing defendant’s innocence, certainly not his guilt, and this Avould imply a shifting of-the burden of proof from the State to the defendant, which would be in contradiction of what is stated in the first part of the charge. These charges, therefore, Avere for the reason stated, if no other, faulty, and Avere properly refused.
Charge 7 is clearly argumentative, and Avas properly refused.
There being no error in the record, the judgment will be affirmed.
Affirmed.