Stroud v. State

95 So. 738 | Miss. | 1923

Holden, J.,

delivered the opinion of the court.

The appellant, Stroud, appeals from a conviction for assault with intent to kill and murder. The principal complaint is that the testimony in the case does not sustain the indictment, in that it does not show the inteht to kill and murder.

The proof offered by the state at the trial was that appellant, Stroud, called upon J. B. Sanders at the latter’s residence, and immediately produced some papers which he demanded that Sanders sign. Upon the refusal of Sanders to sign the papers, appellant drew his pistol, cocked it, and pointed it at Sanders, saying, with an oath, that he would kill Sanders unless he signed the papers. Whereupon Sanders believing the appellant would kill him, as he had threatened to do unless he signed the papers, signed them as demanded, and appellant left. Upon this testimony the jury found appellant guilty of an assault with intent to kill and murder; and he was sentenced to ten years in the penitentiary.

The question presented for our determination is whether the proof of the conditional threat to kill Sanders, if he did not sign the papers, is sufficient to establish the essential element of “intent to kill and murder.”

We do not think the evidence was sufficient to warrant the conviction. The intent in such a case is the main ingredient of the offense; and where the facts show that the intent to kill was conditioned upon the happening of some other event, which may, within reason, fail to take place, the real intent to kill and murder does not come into existence. The actual intent must exist. The fact that appellant would have intended to kill if the event, to-wit, the failure of Sanders to sign the-papers, had happened, does not show that appellant had the present intent to kill the party he had conditionally threatened. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392; Wharton, Crim. Law, vol. 2, section 801, p. 1027; 5 C. J. section 178, p. 719.

We think the evidence was sufficient to sustain the charge of.assault; and possibly the facts would justify an indictment for another statutory offense. However, the proof does not sustain the charge of assault with intent to kill and murder.

We have carefully considered the argument of the assistant attorney general for the state, and note the distinction attempted to be drawn between the Hairston case, supra, and the case before us. But we are unable to differentiate the principle in that case from the one' at bar. Tt Is i-”ue that i n the Hairston case the assaulter threatened to kill the other party because of the latter’s unlawful interference with his team, and in the present case the assaulter was attempting to compel the assaulted party to do a thing which he had no right to demand. Neverthethe rule is well settled that it is the conditional threat, whether such condition is right or wrong, that relieves the assaulter of the intent to kill and murder.

The reasoning upon which the rule is based seems to be that in such a case there can be no actual or present intent to kill, and may never be, since the intent is conditional upon some other event which may not happen.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.