State v. Daley, 41 Vt. 564

State v. Daley

41 Vt. 564 | Vt. | 1869

The opinion of the court was delivered by

Prout, J.

The first count of the indictment, which is the only one in question, charges the respondent with having committed an assault and battery upon one John Moss with intent to kill, and, *566as the exceptions show, is based on section 18 of chapter 112 of the General Statutes. The objection made by counsel to it is, that the conviction of the respondent can not be sustained, as it is not alleged in this count of the indictment that the intent of the respondent, giving the act charged its criminal aspect and quality, was unlawful and felonious. The allegation of the indictment is, that' the assault, etc., was committed with the “wicked, willful and malicious intent to kill and slay.” The crime as charged, and of which the jury have found the respondent guilty, is not a common law but a statute offense. That (General Statutes ubi supra) embraces and enumerates all the elements constituting the crime the legislature had in view, and it does not make the technical allegation, claimed to be material, at all essential. The Statute then not providing for the punishment of a common law offense by its legal or common law designation, but creating and defining it, the indictment is sufficient, as it charges the commission of the criminal act substantially in the language of it. This was so held in Tully v. Commonwealth, 4 Met., 357. In that case the question was before the court, and was held to stand upon this distinction : u When the statute punishes an offense by its legal designation, without enumerating the acts which constitute it, then it is necessary in an indictment to use the terms which technically charge the offense named at common law. *' * * But this is not necessary where the statute describes the whole offense, and the indictment charges the crime in the words of the statute.” In State v. Cooke, 33 Vt., 437, this distinction is recognized, Steele, J., remarking, (c the indictment charges the offense in the words by which the statute creates and describes the offense. The general and recognized rule, both in England and this country, and a late Vermont case, State v. Jones, 33 Vt., 443, requires no more.” The same principle is held in People v. Pettit, 3 Johns., 511. These authorities are conclusive, and the count in question charging the offense to have been committed with the willful and malicious intent to kill, and in other respects, in the language of the statute, it is sufficient.

' The respondent also insists that the charge of the court to the jury was erroneous, in respect to the question of the respondent’s *567intention, insisting that the intent to kill should have been “ specifically proved,” and, as indicated in his request to the court, beyond the “ possibility of a doubt.” It is true a willful and malicious intent to kill is an essential element of the offense, and so is the assault. There must be a concurrence of both the act and intent to warrant a conviction, and this must be found by the jury upon the rule of proof applicable to a criminal case, but the degree of evidence as applied to both is the same, which is that degree of proof which satisfies the jury of the essential facts, beyond a reasonable doubt. ■ It was upon this rule that the court put these questions to the jury, and, as we hold, correctly. For these reasons, the respondent’s exceptions are overruled.