Courtney v. State

Hurt J.

Andrew Courtney, the appellant, was convicted of an assault with intent to murder Dennis Blake. By a careful reading of the evidence in this case it will be seen that the issue, the vital point presented, is: Did the defendant assault Blake with intent to kill him? This issue being so prominently made by the evidence (which will be given in full by the Reporter), the defendant was entitled to a charge upon the same.

The jury should have been told, in substance, that to convict defendant they must believe from the evidence that he assaulted Blake with intent to kill him. The jury were not informed by the charge that it was necessary, in order to constitute this offense, that the intent to kill must exist. We are not to be understood to intimate that a party would be guilty of an assault to murder in all cases in which an assault is made with intent to kill. This would depend upon the circumstances. But we do assert that; to constitute an assault to murder, there must be an intent to kill.

The only charges submitted to the jury germane to this subject are* these:

“Where an assault is made by one person upon another with a deadly weapon, or such weapon as by its use as a weapon is calculated to produce death or serious bodily harm, and under such circumstances as, had death resulted to the person assaulted from the assault, the offense would then be murder, such an assault would be an assault to murder.

“If the evidence shows to you, beyond a reasonable doubt, that the defendant at any time within three years before the date of the filing of the bill of indictment, which was on the fourteenth day of December, 1881, and in the county of Marion, cut and wounded' Dennis Blake with a knife; that the knife so used by the defendant was a deadly weapon, or such weapon as was calculated in its use as a weapon to produce death or serious bodily harm, and there is no evidence tending to excuse or justify the act, or to show that it was done under the immediate influence of a sudden passion arising from an adequate cause, such as I have named, or others; and you further find from the evidence, beyond a reasonable doubt, that, had death resulted to the said Blake from the said wounding and cutting, the offense would then have been murder either of the first or second degree, then you will find the defendant guilty of an assault with intent to murder.”

These charges were inspired no doubt by Article 502 of the Penal Code, which is as follows: “Wherever it appears upon a trial for assault with intent to murder that the offense would have been murder had death resulted therefrom, the person committing such assault is deemed to have done the same with that intent.” This article is made the only test, and from it it is inferred that it is not necessary for the specific intent to take life to exist in order to be guilty of an assault with intent to murder; that, death resulting, if the party would be guilty of murder, death not resulting he would be guilty of an assault with intent to murder; and, as murder can be committed without the existence of the specific intent to kill, so can an assault to murder. These deductions, we think, are non sequitur and erroneous.

We have given our views upon this subject in White v. The State, ante, p. 259, which will be found in the Texas Law Reporter, vol. 2, p. 797. In that case will be found our construction of Article 502, Penal Code. Because the court failed to charge the law imperatively demanded by the issue presented by the evidence, and because the test submitted to the jury not being the only test, the judgment is reversed. (59 Ala., 1; 18 Ala., 533; 1 Bish. Crim. Law, secs. 736 and 514; 53 Ala., 27; 37 Maine, 216; 18 Ala., 532; White v. The State, Texas Law Rep., vol. 2, 797.)

Reversed and remanded.

Opinion delivered February 21, 1883.