88 P. 792 | Mont. | 1907
delivered the opinion of the court.
The defendant in this case was convicted of the crime of assault in the first degree, his prosecution being based upon an information which reads, in part, as follows: “The said Joseph Schaefer on or about the ninth day of January, 1906, * * * at the county of Deer Lodge and state of Montana, did then and there willfully, unlawfully and feloniously with a loaded firearm, to-wit, a revolver, * * * then and there assault one Frank Yamer, with intent in (him), the said defendant, to then and there unlawfully, willfully and feloniously kill the said Yamer.” From the judgment of conviction and an order overruling his motion for a new trial, the defendant has appealed to this court.
It is contended that “neither of these presumptions of law embodied in this instruction are applicable to a case of assault with a specific intent to kill, nor to any case where the specific intent with which the act is done is the very gist of the offense; that had the acts of the appellant resulted in the death of Frank Yamer, and had the appellant been charged with the completed offense of murder or manslaughter, then this instruction would have correctly stated the presumption of law, but, where the act done falls short of the intent entertained by the party, and the defendant is charged with doing the act with a specific intent, then these presumptions have no application, for the question of intent becomes a question of fact for the jury to decide, upon all the evidence laid before it, without the aid of any presumption of law.’
We are of opinion that this instruction did not tell the jury that the “intent to kill” might be presumed, but only that the intent was presumed to be “malicious.” Article 4 of section 7 of the Penal Code is as follows: “The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or
The second assignment is that the court erred in giving instruction No. 14, as follows: “You are instructed that to sustain an information for an assault in the first degree the evidence must be such as to warrant a conviction for manslaughter, had death ensued from the assault, and, if you find from the evidence beyond a reasonable doubt that the defendant, Joseph Schaefer, assaulted the said Frank Yamer with the felonious intent to kill the said Yamer in the manner and form charged, and at the time stated in the information, and that you believe, if death had resulted from said assault, that the defendant would have been guilty of the crime of manslaughter, then you will find the defendant guilty of the crime of assault in the first degree as charged in the information. ’ ’
The essence of the crime of assault in the first degree, as charged in this information, is the intent to kill. The court, in another part of the charge, correctly defined the crime of manslaughter in the words of the Penal Code, as follows: “Manslaughter is defined to be the unlawful killing of a human being without malice, and is of two kinds: (1) Voluntary, upon a sudden quarrel or heat of passion; (2) involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution or circumspection.” (Instruction No. 15.)
Appellant’s counsel make the point that the punishment for assault in the first degree, as fixed by the Penal Code, is from five to .ten years in the state’s prison, and for manslaughter the minimum punishment may be one day in prison. They ar
It will be observed that the crime of involuntary manslaughter, in its very terms does not involve any intent—it is involuntary. The jury were told, in effect, that, if' they believed, if death had resulted from the assault, that defendant would have been guilty of the crime of involuntary manslaughter, then they should find him guilty of assault in the first degree. Observe, further, that involuntary manslaughter may be consummated in the commission of an unlawful act not amounting to a felony. Assume that, from the commission of this unlawful act not amounting to a felony, death did not result. The court, however, told the jury that in this latter ease the defendant could be convicted of a felony. We think this was error.
We suggest that in future cases of assault in the first degree, where the specific charge in the information is ‘ ‘ assault with intent to kill,” the district courts omit all reference to the crimes of murder or manslaughter, and advise juries, in lieu thereof, that, to sustain an information for such an assault, they must find from the evidence, beyond a reasonable doubt, that the assault was committed with intent to kill.
It is further urged that the court, after defendant had testified that he had previously been convicted of a felony, should have allowed him to tell the jury what the supreme court did with the ease on appeal. The record shows that the defendant answered the question by saying that the lower court was reversed. Thereafter the county attorney objected to this evidence, and the court sustained the objection. No motion was made, however, to strike out the answer, and the jury had the full benefit of it.
Reversed and remanded.