T. B. White v. The State, 13 Tex. Ct. App. 259

Hurt, J. 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 mitig’ate, excuse or justify the act, the killing, or attempt 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 defendant is convicted, it is necessary that the intent to kill should exist, the above charge is not the law, and the judgment must be reversed.

The question therefore presented is, “Must the party intend to kill?”

Article 500 of the Penal Code provides that, “ If any person shall assault another with intent to murder, he shall be punished,” etc. Can a party assault another with intent to murder without the intent to kill? Can murder be committed in the absence of the intent to kill? We answér, yes. Does it follow from this concession that an assault with intent to murder can be made in the absence of the intent to kill? We think not. Murder is the unlawful killing of another with malice aforethought. How is it possible for a party to intend to murder, which is a killing prompted by malice, without intending to kill?

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 housetop recklessly throws down a billet of wood upon the sidewalk where persons are constantly passing, and if it falls upon a person passing by and kills 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 cannot conclude that it is a logical sequence that, because murder can be committed in the absence of the intent to kill, 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 circumstances in evidence.

It is true that the aggravated offense with which the defendant is charged can not exist unless, if death had resulted, the completed offense would have been murder. From this it does not necessarily follow that every assault 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 specific intent, the essential characteristic of the offense, exists. Therefore in Moore v.

The State (18 Ala., 533), an affirmative instruction ‘that the same facts and circumstances which would make the offense murder if death ensued, furnish sufficient evidence of the intention, was declared erroneous.” The court says: “There are a number of cases where a killing would amount to murder, and yet the party did not intend to kill.

As, if one from a housetop recklessly throws down a billet of wood upon the sidewalk where persons are constantly passing, and it falls upon a person passing by and kills him, this would, by the common law, be murder, but if, instead of killing him, it inflicts only a slight injury, that party could not be convicted of an assault with intent to murder. Other illustrations may be drawn from our statutes. Murder in the first degree may be committed in an attempt to perpetrate arson, rape, robbery, or burglary, and yet an assault committed in such an attempt is not an assault with intent to murder.

If the intent is to ravish or rob, it is, under the statute, a distinct offense from an assault to murder, though punished with the same severity. And at common law, if death results in the prosecution of a felonious intent from

an act malum in se, the killing is murder. As if A shot at the poultry of B intending to shoot them, and by accident kills a human being, he is guilty of murder. (1 Russell on Crimes, 540.) Yet if death did not ensue, if there was a mere battery, or a wounding, it is not, under the statute, an assault with intent to murder. The statute is directed against

an act done with the particular intent specified. The intent in fact is the intent to murder the person named in the indictment, and the doctrine of an intent in law different from the intent in fact, has no just application; and if the real intent shown by the evidence is not that charged, there can not be a conviction for the offense that intent aggravates, and in contemplation of the statute merits punishment as a felony.” (Ogletree v. The State, supra; Morgan v. The State, supra.) As is said by Mr.

Bishop, “ the reason is obvious; the charge against the defendant is that, in consequence of a particular intent reaching beyond the act done, he has incurred a guilt beyond what is deducible merely from the act wrongfully performed, and, therefore, to extract by legal fiction from this act such further intent, and then add it back to the act, to increase its severity, is bad in law.” (1 Bish. Crim. Law., secs. 736, 514; Washington v. The State, 53 Ala., 29; State v. Neal, 37 Maine, 468; Moore v. State, 18 Ala., 532.) We do not, if we were competent, desire to add any further arguments.

We think those of the learned judge, in the case above cited, 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.” (Article 502, Penal Code.) But, as observed by the court in the case cited: “Suppose the party should assault another with intent to rape or rob, if death resulted he would be guilty of murder in the first degree, but it does not follow, there being no death, that he would be guilty of an assault to murder.

We know that he would not, but would be guilty of an assault to rob or rape, as the case may be.” Our construction of

Article 502 is as follows: In order to constitute the offense of an assault with intent to murder two things must concur: 1, An assault; and 2, 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 assault 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 murder required in the offense. 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. We are of the opinion that the charge complained of was erroneous, and that the judgment must be reversed. The judgment is reversed and the cause remanded. Reversed and remanded. Opinion delivered November 18, 1882.