Prince v. State , 35 Ala. 367 ( 1860 )

R. W. "WALKER, J.

In the State v. Marshall, 14 Ala. 411, it was hold, that an indictment, which charged that the defendant committed “an assault with an attempt to murder,” is hot a sufficient allegation of the offense defined by the statute as “an assault with «¿mito murder.” We will uot now stop to inquire whether this decision can be sustained upon principle. Whatever may be the rule in reference to the form of indictments, under a statute using the specific words above quoted, it could never he tolerated that a distinction so technical should be applied iu construing the verdict of a jury. Verdicts are not construed strictly, as pleadings are. If the meaning of the jury can be collected from the finding, the court will mould the verdict into form, and make it servo. — Oxford v. The State, 33 Ala. 417. Bishop, in his work on Criminal Law, says, “ When we say that a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part.” — 1 Bishop’s Crim. Law, § § 511-12. Indeed, it seems impossible to doubt that the only distinction "between an intent and an attempt to do a thing, is, that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution. — Johnson v. The State, 14 Geo. 59; 2 Bishop’s Grim. Law, § 663; Bullock v. The State, 13 Ala. 416; Uhl v. Commonwealth, 6 Graft. 710; State v. Davis, 1 Ired. 125.

However strict may be the requisition that, in indictments founded on a statute prescribing tbc punishment for an assault with intent to commit a particular offense, the specific words of the statute shall be pursued; yet, inasmuch as an attempt to do a tiling necessarily involves an intent to accomplish what is attempted, we think that, when a jury returns as their verdict that the defendant is guilty of an assault with attempt to commit a rape, this is tantamount to a verdict that he is guilty of an assault with intent to commit a rape. It follows from this, that the amendment of the.verdict made in the 'court below, was one of mere form, and did not change its substance or legal effect. Even if it be conceded, therefore, that the' amendment was irregular, the defendant has not been injured by, and cannot complain, of it.

Judgment affirmed.