36 Wash. 143 | Wash. | 1904
Appellant was charged with the crime of assault with intent to commit murder. After a trial, a verdict of guilty as charged was returned, and judgment was entered thereon, whereby appellant was sentenced to serve a term of thirteen years’ imprisonment in the state penitentiary. He has appealed from the judgment.
The material facts, as detailed by the prosecuting witness, were that he arrived at Toppenish in Yakima county, by freight train, about 11 o’clock P. M., October 18, 1903; that, after getting off the train at Toppenish, he was walking along the railway track when he met the appellant, a stranger to him, who engaged in conversation with him; that, after two or three minutes’ conversation, the appellant drew a gun and said to the witness, in substance, that the best thing he could do was to hold up his hands; that the witness then ran toward the depot, when appellant shot him, the shot taking effect in the right hip; that, immediately after he was shot, the prosecuting witness ran to the depot and into- the waiting
One assignment of error is that the court should have set aside the verdict, and granted a new trial, for the reason that the evidence did not warrant the jury in finding, beyond a reasonable doubt, that the appellant is the person who shot the prosecuting witness. We think, under the evidence detailed above, that it became the province of the jury to determine that fact, and that no error
The more serious errors assigned relate to the instructions of the court. The state has filed no brief in the case, and we are, for that reason, deprived of the benefit of any suggestions or research on the part of respondent’s counsel touching the questions involved. It will be remembered that appellant was charged with assault with intent to commit murder. The intent to commie murder was therefore an essential element of the crime charged. Such intent was a fact to be proved by the state and found by the jury. The intent to commit murder could not be presumed, as a matter of law, from the mere fact that an assault was committed which did not result in death. It is a fact, capable of being established by satisfactory proof, that one may shoot another, intending to disable him but without an intention to kill him, and when death does not result from the act, the presumption of law as to intent is in favor of the accused, and not against him. In this connection the court gave the following instruction:
“On the question of intent, I charge you that every person is presumed in law to intend the natural arid necessary consequences of any act intentionally done. This presumption will always prevail unless the jury, from a consideration of all the circumstances of the particular case before them," entertain a reasonable doubt as to whether or not such intent did in fact exist”
The prosecuting witness was not murdered, and the above instruction as applied to the facts of this case, it seems to us, left the jury to understand that, as death might have resulted as the natural consequence of appellant’s act, the law presumes that he intended that such
“While the court correctly stated to the jury that the natural and probable consequences of every act deliberately done by a person of sound mind is presumed to have been intended, yet the rule of evidence so announced has no application to the case at bar. The rule applies only to offenses actually committed, i. e., to ‘consequences’ which really ensue, and not to those which do not ensue. Roberts v. People, 19 Mich. 409. The crime here charged consists of two essential elements] first, an assault, and second, a specific felonious intent to kill. Both these elements were alleged as facts in the information, and it was therefore incumbent upon the state to establish them as facts by competent evidence. And it was for the jury, and not the court, to determine the existence of both these facts. But the court by this charge invaded the province of the jury and assumed to draw the proper inferences from hypothetical facts stated, as a mere assumption of law. ‘If,’ as was said by the supreme court of Michigan in Maher v. People, 10 Mich. 218, ‘courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist,’ ”
The following- instruction was also given:
“I further charge you that if you find, beyond a reasonable doubt, that the defendant fired the shot described in the information, if you find a shot was fired either in the perpetration or attempt to perpetrate a robbery and death had resulted, the killing would have been murder in the first degree, and no plea of accident or self defense can avail this defendant.”
This instruction, it seems to us, is subject to the same criticism as the one already discussed. It is silent as to the necessity for the existence of actual intent, and in effect leaves the intent to be presumed as a matter of law, although death did not result. Had death resulted from the shooting while in the attempt to perpetrate a robbery, the law would have presumed that murder was intended, but, as we have seen, such a presumption does not arise as a matter of law when a mere assault has been committed which has not caused death.
Appellant urges that other instructions given are subject to the same criticism. We, however, think it is unnecessary to analyze them here. It is further urged that the errors above mentioned were not cured by other instructions given. The following was given:
“If you are satisfied' beyond a reasonable doubt in this case that the defendant did, within three years prior to the filing of the information in this case, assault the prosecuting witness in manner and form as charged in the information, in the county of Yakima, state of Washington, and that he intended to commit the crime of murder as previously defined to you, it will be your duty to find him guilty as charged. If you find he committed the assault alleged but without intent to com*149 mit murder, you will find him guilty of assault. If you entertain a reasonable doubt as to whether or not he committed the assault alleged to have been committed in the information, or that he committed it with intent to commit murder, then it will be your duty to give the defendant the benefit of that doubt and acquit him.”
It seems difficult to harmonize the above instruction with the theory of the others hereinbefore set out. They appear to be in conflict as to the law governing the question of intent, a vital one in the case. While the subject matter of the instruction, standing alone, may state the law correctly, yet it refers to previous ones given, and does not stand entirely alone. Our endeavor to reach the conclusion that it may cure the previous errors is, however, met with the seemingly irresistible objection that, of the two conflicting theories of the law embodied in the instructions, we are unable to determine which one the jury adopted and followed. That such errors are not cured by such an instruction as that above was held in the case of similar instructions where the charge was assault with intent to commit murder, in People v. Mize, 80 Cal. 41, 22 Pac. 80.
For the reasons stated, the judgment is reversed and the cause remanded with instructions to the trial court to grant a new trial.
Fullerton, O. J., and Anders, Dunbar, and Mount, JJ.. concur.