168 Ga. 690 | Ga. | 1929
Lead Opinion
The defendant was charged with the offense of an assault with intent to murder, the substance of which is set out in the question propounded to this court by the Court of Appeals, preceding this opinion. Was the indictment subject to demurrer upon the ground that it failed to charge that the alleged assault was made with intent to kill, or for the reason that it failed to charge that the motor-vehicle alleged to have been driven by the accused was a weapon or instrumentality likely to produce death? “An assault with intent to murder, by using any weapon likely to produce death, shall be punished by imprisonment and labor in the penitentiary not less than two years nor longer than ten years.” Penal Code, § 97. A specific intent to kill is an essential ingredient of the offense of assault with intent to murder. Patterson v. State, 85 Ga. 131 (11 S. E. 620, 21 Am. St. R. 152); Gilbert v. State, 90 Ga. 691 (16 S. E. 652); Lanier v. State, 106 Ga. 368 (32 S. E. 335); Kimball v. State, 112 Ga. 541 (2) (37 S. E. 886); Napper v. State, 123 Ga. 571, 573 (51 S. E. 592). The specific intent to kill being an essential element of the offense of assault with intent to commit murder, both under the section of the code defining this offense and under the decisions of this court, the indictment should allege the specific intent to kill. It is a well-recognized rule that every indictment must charge every essential ele
Was the indictment subject to be. quashed because it failed to charge that the automobile was a weapon or instrumentality likely to produce death? Section 97 of the Penal Code is as follows: “An assault with intent to murder, by using any weapon likely to produce death, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than ten years.” As an original proposition it can be plausibly urged that under this section the' offense of an assault with intent to murder can only be
The ruling in Monday’s .case was followed in Johnson v. State, 92 Ga. 36, 38 (17 S. E. 974), where this court said: “Poison introduced into the stomach is not, accurately speaking, a weapon, if, indeed, it may be called a weapon at all; but nevertheless we are of the opinion that an assault with intent to murder may be committed by administering poison in this manner. In Monday v. The State, 32 Ga. 672, this court held that an assault with intent to murder might be committed without the use of a weapon of any kind. In that case the homicide was attempted by choking. In a sense, the strong hands of the assailant might be regarded as natural weapons, like the claws of a lion, or the fangs of a serpent; but the indictment did not allege the use of any weapon whatever. There is very little substantial difference between assault with intent to murder and ah attempt to murder, and we do not now recall any case in this State where an attempted homicide, done in malice, has been technically charged in an indictment as an ‘attempt to murder.’” In Walker v. State, 124 Ga. 440, 441 (52 S. E. 738), this court said: “It is not essential to the validity of every indictment for assault with intent to murder that it allege that the assault was committed with a weapon likely to produce death; for, as was pointed out in Monday’s case, 32 Ga. 672, and Johnson’s case, 92 Ga. 38 (3), the offense may be committed without the use of any weapon at all.” Again in Paschal v. State, 125 Ga. 279, 280 (54 S. E. 172), Mr. Justice Evans, speaking for this court, said: “The offense of assault with intent to murder may be committed without the use of a weapon likely to produce death, or without any weapon at all, if the assault be made to kill unlawful^, with malice aforethought.” These rulings seem to be in harmony with the rule at common law. “It is not essential to an assault with intent to commit murder that a deadly or dangerous weapon shall have been employed, unless the statute so requires, nor need any weapon at all have been used. Thus, trying to choke, or suffocate and drown another, or the sending of a box containing explosives which explodes when opened, has been held to constitute an assault with
Furthermore section 97 was not intended to define what constitutes the offense of an assault with intent to commit murder. To ascertain what constitutes this offense we will have to look to the common law and the decisions of this court, which define this offense and point out its essential elements. We can not get this definition or ascertain the essential elements of this crime from this section of the code. The purpose of this section was to change the grade of the offense from that of a misdemeanor to that of a felony. This being its purpose, it does not change the common-law elements of the offense of an assault with intent to commit murder. It does not create a new statutory offense, but adopts the common-law offense of an aggravated assault with intent to commit murder, and changes the grade of the offense from that of a misdemeanor to that of a felony. Such adoption and change of punishment do not change the common-law elements of the offense. 16 C. J. 15 (§ 158) A 1. We think that a contrary ruling must be based upon too narrow a definition of the words “deadly weapon” as used in this section of the Penal Code. They should be held to include all means or instrumentalities by which assaults with intent to commit murder can be made.
We have held that the indictment in this case, as one for an assault with intent to commit murder, is defective in that it fails to charge a specific intent to kill. For this reason the defendant can not be tried thereon for the offense of an assault with intent to commit murder. By this we are not to be understood as holding that the indictment should be quashed. Under this indictment the defendant can be tried for an assault and battery. For this reason it should not be quashed, if the prosecuting attorney should decide to prosecute the defendant for assault and battery.
Concurrence Opinion
concurs in the ruling first stated, but not in all
An assault is an attempt to commit a violent injury on the person of another (Penal Code (1910) § 95), and is punishable as a misdemeanor. § 96, An assault with intent to murder necessarily involves an intent to kill (Patterson v. State, 85 Ga. 131, supra), and, if committed by use of a weapon likely to produce death, is a felony punishable by confinement in the penitentiary for not less than two years nor longer than ten years. Penal Code (1910), § 97. At common law all assaults with intent to commit felony were classed as misdemeanors. 2 Wharton’s Criminal Law (11th ed.), 1051, § 838; 13 R. C. L. § 102; Hall v. State, 9 Fla. 203 (76 Am. D. 617). Penal Code § 97 is a departure from the common law. The language of that section first appeared in the act approved December 22, 184-0 (Ga. L. 1840, p. 140), and has been contained in the several codes since adoption of that act. Provisions quite similar were contained in § 39, Division 5, of the Penal Code of 1816 (Ga. L. 1816, pp. 142, 152) ; also § 39, Division 4, in the Penal Code of 1817 (Ga. L. 1817, pp. 92, 101); also § 43, Division 4, in the Penal Code of 1833 (Ga. L. 1833, pp. 143, 153). According to the act of 1816, any assault with intent to commit murder in this State by use of a weapon likely to produce death was a felony. Other classes of assaults with intent to commit murder otherwise than by use of a weapon likely- to produce death were not made felonies. This distinction was no doubt in the mind of Mr. Justice Candler in Walker v. State, 124 Ga. 440 (supra), when he stated that it is not essential to the validity of “every indictment” for assault with intent to murder to allege that the assault was committed with a weapon likely to produce death. The offense of assault with intent to commit murder must have all the elements of murder, except death of the victim. Jackson v. State, 51 Ga. 402. The offense being of the character mentioned, the intent to kill and murder is of the essence of the crime, and being so must be alleged in the indictment. 2 Wharton’s Criminal Law (11th ed.), 1051, § 839; 2 Enc. Pl. & Pr. 851; 2 R. C. L. § 48. For similar reason, where the offense is committed by-use of a weapon likely to produce death, such character of the weapon is of the essence of the felony, and must be alleged in the indictment. An automobile, while not constructed for use as a weapon, may be used in such manner