Phillips v. State , 120 Fla. 134 ( 1935 )

The writ of error brings for review judgment of assault with intent to commit murder in the second degree.

The only contention urged by the plaintiff in error is that the evidence was not sufficient to establish that the assault was with intent to kill.

The evidence is amply sufficient to warrant the jury in finding that at the time of the assault the accused made such assault with intent to kill. For one to have the intent to kill in the making of the assault does not necessarily mean that he had a premeditated design and fixed purpose to effect death, even for a short time before making the assault, but it means that he willfully and unlawfully makes an assault with a deadly weapon which he knows, or should know, may reasonably be expected to result in the death of the person assaulted. See Jones v. State, 66 Fla. 79, 62 So.2d 899. In a case where if the assaulted person had died of the wound inflicted the accused could have been held to have committed murder in the second degree he may be properly convicted of assault with intent to commit murder in the second degree if, fortunately, the assaulted person does not die of the wound so inflicted. Pyke v. State, 47 Fla. 93, 36 So.2d 577; Feagle v. State, 55 Fla. 13,46 So.2d 182; Knight v. State, 42 Fla. 546, 28 So.2d 759.

The judgment should be affirmed.

So ordered.

Affirmed.

ELLIS, P. J., and TERRELL, J., concur.

WHITFIELD, C. J., and BROWN and DAVIS, J. J., concur in the opinion and judgment.