| Ill. | Jan 15, 1868
delivered the opinion of the Court:
This was an indictment in the Marion Circuit Court, against plaintiffs in error, for an assault with an intent to commit murder. A trial was had before the court and a jury, which resulted in a conviction and sentence of confinement of each in the penitentiary, for the term of one year; to reverse which, they prosecute this writ of error, and assign various errors on the record.
There seems to be no doubt, from the evidence, that Lin-ville did shoot the prosecuting witness. But it is insisted, that he shot at another person, and that it was accidental that Bird was hit. But Bird testified that he believed it was intentional, as the accused pointed the pistol at him, and then fired. It is true, other persons were in the same direction, and between Linville and Bird. But it appears that Linville had no concern with the commencement of the affray. It occurred between Vandermark and Hand. Linville immediately drew his pistol, and seems to have shot and struck Bird, who was not even in the crowd. Under these circumstances, the jury were warranted in the conclusion, that he was actuated by malice against Bird. Or, if not, his conduct was so reckless that it implied a total disregard for the lives of others. The act was such as implied general malice. He evidently intended to shoot some one, and when it was without any apparent provocation, it must be referred to malice. As to him, the evidence was sufficient to warrant the finding of the jury.
On the other hand, Bird does not know whether Hand shot or not, and but one witness says he did, and that it was in an opposite direction. From the evidence, we are. unable to see that he could have done so without some person having seen it. But, even if he did shoot, he seems to have been assaulted by Vandermark in a most brutal and murderous manner, and, so far as this record discloses, without the slightest provocation. When attacked with a club, which appears to have been a deadly weapon, without notice or ev'en an intimation of his danger, so far as appears from the evidence, he might well suppose that his life was in danger, and that it could only be preserved by the use of his pistol. At any rate, we do not see that he shot at, or even towards Bird, and the evidence fails to sustain the verdict against him.
It is said, that the full Christian name of the prosecuting witness should have been given, and that the initials were not sufficient. It is a rule of pleading, that the name of the person receiving the injury, when known, must be set out in the indictment, that the accused may know of what particular offence he is charged. But when the person is described by the initials of his Christian name, and he is as well known by that as his full name, the object of the rule is obtained, and no error is committed. And it is a question for the determination of the jury, whether he was known in the community as well by that as his full name. In this case the jury so found upon the evidence.
Upon the whole record, we are satisfied that Linville was properly convicted, and, as to him, the judgment is affirmed, but that the evidence fails to sustain the verdict against Hand, and as to him it must, therefore, be reversed, and the cause remanded for further proceedings as to him.
Judgment reversed '¡/apart