Citation Numbers: 1 Tex. L. R. 797
Judges: Hurt
Filed Date: 1/15/1883
Status: Precedential
Modified Date: 1/6/2022
Opinion by The appellant was convicted of an assault with intent to murder. The learned judge below, submitted to the jury the following charge : “If the act by which the killing, or attempt to kill, is done, is unlawful, and the result of design, and is such as would in its reasonable and probable consequence cause death, in such case where there is nothing shown to mitigate, excuse or justify the act, the killing or at'empt to kill, would be with malice, and constitute murder, or assault with intent to murder, whether the actual design was to take life or not.” If to constitute the offense for which the defendant is convicted, it is necessary that the intent to hill should exist, the above
If a person intentionally inflicts serious bodily injury upon the person of another which may result in death, although the intent to kill may not exist, the law, if the act was prompted by malice and death ensues, holds him guilty of murder. Again, if one from a house top recklessly throws down a billet of wood, upon the side walk, where persons are constantly passing, and if it fall upon a person passing by and kill him, this would also be murder. Indeed there are a number of cases, where a killing would amount to murder, and yet the party did not intend to kill. But we can not conclude that it is a logical sequence, that because murder ean be committed in the absence of the intent to kill, that therefore an assault to murder can be made without this intent. This precise question was before the Supreme Court of Alabama, in the case of Simpson v. the State. (59, Ala. 1.) And the Court there held a charge quite similar to the one under discussion, erroneous. In that case the court says : The intent can not be implied as a matter of law, it must be proved as a matter of fact, and its existence the jury must determine from all the facts and circumstance^ in evidence. It is true the aggravated offense with which the defendant is charged cannot exist, unless if death had resulted the completed offense would have been murder. From this it does not necesarily follow that every result from which if death ensued, the offense would be murder, is an assault with intent to murder within the purview of the statute, or that the
We do not, if we were competent, desire to add any further argument. We think that of the learned judge, in the case above, is exhaustive of the subject. The learned judge below, no doubt, relied upon the following provisions of our code: Whenever 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. (Art. 502, P. C.)
But as observed by the court in the case cited, suppose the party should assault another witfi intent to.rape, or rób, if death resulted, he would be guilty of murder in the first degree, but it does not follow, there being ho death, that he would be guilty of an assault to murder. We know that he would not, but would be guilty oi an assault to rob or rape, as the case may be. Our construction or article 502, is as follows : In order to constitute the offense of an assault with intent to murder, two things must concur ; 1st An assault — 2nd A specific intent to kill. Without a simultaneous concurrence of these two constituent elements, there can be no assault with intent to murder. No other intent save the specific one to kill, will be'sufficient. If the intent is to maim, rob, rape, or other than to kill, it will not be an as. ault with intent to murder. The intent may be to kill under circumstances which, if death ensued, it would not be murder; Such intent would not constitute the specific intent to murdbr, required in the offenses. The article of the code which we have quoted is applicable only where there exists the specific intent to kill. It is not applicable in any case, where such.intent does not exist. It simply prescribes a test by which to determine 'whether there was an offense,'and if so, what offense, but in thus affording a test, does not dispense with the very gist of the offense, that is, a specific intent to kill.