Darity v. State

HENDERSON, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at two years in the penitentiary; hence this appeal.

The only questions necessary to be noticed relate to the charge of the court, which is excepted to in the motion for a new trial. The evidence showed that "appellant was very drunk at the time of the alleged assault. Appellant asked a number of charges predicated on the theory that if appellant was so drunk at the time as not to be capable of forming the specific intent to kill he should be acquitted.

In the general charge of the court, besides the statutory charge on intoxication produced by the recent use of intoxicating liquors, the court further instructed the jury as follows: “There can be no offense of assault with intent to murder without the specific intent to take life. So, if you should believe that the defendant discharged a gun into T. S. Hill’s house, and thereby wounded Bessie Hill, but unless you further believe beyond a reasonable doubt that the defendant intended to kill Bessie Hill, you can not convict the defendant of assault with intent to murder. But upon this point you are instructed that if the defendant voluntarily discharged his gun into T. S. Hill’s house with intent to kill any person who might be in the way of the shot, and that he thereby wounded Bessie Hill, such intent upon the part of the defendant would in law include the intent to kill Bessie Hill.” And the court further charged: “If you should believe from the evidence that the defendant intentionally fired his gun into Hill’s house, and wounded Bessie Hill, in such manner as to constitute an unlawful assault, as hereinbefore defined and explained, and that said means as used by him was a deadly weapon, and if you do not believe beyond a reasonable doubt that he had the specific intent to kill, such as to constitute assault with intent to murder, as the matter has hereinbefore been explained, then you will find the defendant guilty of an aggravated assault, and assess his punishment,” etc.

By this charge the court clearly instructed the jury to acquit the defendant of assault with intent to murder, unless they believed at the time that he had the specific intent to kill; and this, no matter how the want of defendant’s specific intent was caused. The charge furthermore told the jury, if they believed he committed an unlawful assault in shooting said Bessie Hill, but did not shoot her with the specific intent to kill her, to find him guilty of an aggravated assault. This accords with our view of the subject. The court furthermore instructed the jury that if they believed defendant accidentally discharged his gun, and so shot Bessie Hill, to acquit him altogether. In our opinion, the charge of the court adequately presented every issue in the case, and sufficiently guarded all of the rights of the defendant, under the testimony; and it was not necessary, even if the requested charges had been properly framed, for the ' court to give them. The evidence unquestionably shows that appellant was very much under the influence of liquor at the time he fired the shot that struck Bessie Hill, but it does not show that he was so drunk at the time as not to entertain the specific intent to take life. His acts and conduct just before the shooting indicate that, while he knew what he was about, he was in a reckless and dangerous mood, and was utterly disregardful of the rights of others. In such a mood he recklessly fired into the house of another, and wounded a little girl. Hnder the circumstances, we think, if by the shooting he had slain Bessie Hill, defendant would have been at least guilty of murder in the second degree, upon implied malice. The judgment is affirmed.

Affirmed,.