People v. Lilley

• Citation: 5 N.W. 982,43 Mich. 521
• Court: Supreme Court of Michigan
• Decision Date: 09 June 1880
• Parties: THE PEOPLE v. LILLEY.

5 N.W. 982

43 Mich. 521

THE PEOPLE v. LILLEY.

Supreme Court of Michigan

June 9, 1880

A mere intent to commit violence, accompanied by acts preparatory thereto, will not sustain conviction for an assault if it goes no further. There must be present ability to carry out the intent, and the act done must be criminal and sufficiently proximate to the deed intended, and it is for the jury, under proper instructions, to determine whether it has proceeded far enough. Where an act is done with intent to commit an assault, but the intent is voluntarily abandoned or is prevented while the distance between the parties is too great to commit an actual assault, there can be no conviction as for an assault. An assault is an inchoate violence to the person of another, with the present means of carrying the intent into effect. Threats are not enough; there must be violence actually offered, and within such distance that harm may follow it if the assailant is not hindered. An assault with intent to commit manslaughter is not an offence known to the law for Michigan. There can be no specific intent without deliberation, and, as manslaughter cannot be deliberate, it seems that there can be no such offence as an assault with intent to commit manslaughter. In a statute treating of offences committed with a particular and deliberate attempt it seems that general language referring to assaults with intent to commit any other felony must also contemplate deliberate intent.

Exceptions from Cass.

Otto Kirchner, for plaintiff.

F.J. Atwell and J.J. Van Riper, for defendant.

MARSTON C.J.

The respondent was tried upon an information which charged him with having made an assault upon one Horace McKenzie, with intent, then and there, etc., to kill and murder him. Under instructions the respondent was found guilty of an assault with intent to commit manslaughter. The case comes here on exceptions before judgment, and while quite a large number of exceptions were taken, and have been presented in this court but few will be considered, as they reach the merits.

A difficulty had arisen between the person claimed to have been assaulted and the father of respondent as to the proper division of certain wheat, then being threshed, and which led to blows. It appears the respondent was struck on the head by McKenzie, and he thereupon "retreated" or walked toward the straw-stack, some 10 or 12 feet distant.

There is some conflict in the evidence as to what thereupon took place, but as respondent was entitled, as a matter of right, to have the case submitted to the jury under instructions applicable to the evidence, favorable as well as unfavorble to him, we must, for the present purpose, consider the charge as given, and the refusals, in view of the evidence, most favorable to the accused. After respondent reached the straw-stack he turned around, took a knife out of his pocket, made some threat, and advanced towards McKenzie. After he had advanced one or two steps he was caught by a bystander, and there is some question as to whether the knife at this time, was open or not, and witnesses testified that he was then 10 or 15 feet distant from McKenzie,--the person assaulted,--and that respondent then put the knife in his pocket. This practically ended the matter.

The court, as requested by the prosecuting attorney, instructed the jury: "An assault is an attempt or offer with violence to do a corporal hurt to another; an offer to inflict bodily injury, by one who is rushing upon another, is an assault. Although the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness to believe that he is in immediate danger of receiving such threatened injury, any intent to commit violence, accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance. And, in this case, if Lilly, being within 10, 15, or 20 feet of McKenzie, drew his knife from his pocket and commenced to open the same, and started towards McKenzie in a violent manner, threatening that he would do him bodily injury, and after advancing towards him a few steps, and while rushing towards McKenzie, he was stopped by Dillman, Lilly would then be guilty of an assault."

The court declined to charge--

Sixth. "An assault in law is an effort to strike or cut within striking distance, and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance stopped and voluntarily abandoned his purpose; or if, before coming within striking or cutting distance, was stopped by others and then abandoned his purpose, it would not contitute an assault in law."

Seventh. "In order to constitute the crime of assault with intent to murder, the attempt to strike or cut must be within striking or cutting distance; and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance was stopped by others and then abandoned his purpose, it would not constitute an assault in law."

Seventh. "In order to constitute the crime of assault with intent to murder, the attempt to strike or cut must be within striking or cutting distance; and if the prisoner started to strike or cut McKenzie, and before he got within striking or cutting distance stopped and voluntarily abandoned his purpose, or before coming within striking or cutting distance was stopped by others, and then voluntarily abandoned his purpose, it would not at law constitute an assault with intent to murder, as charged in the first and second counts in the information."

Eighth. "If the jury find that the prisoner took out his knife, but did not open it, or, if opened by him, he did not attempt to cut McKenzie with it, or if they find that the prisoner, before coming within striking distance, voluntary closed the knife, or surrendered it to Dillman, there was no assault, and the offences charged in the information were not committed."

The instructions given, and those refused, raise the question as to what in law constitutes an assault. Beyond this it may be very questionable whether, under any authority, the instructions as given could be fully sustained, even if applied to any facts in this case; and, irrespective of what may be found to constitute an assault, it may also be a matter of some question whether the requests should not have been given.

The instruction as given would seem to lay down the general proposition, "that any intent to commit violence accompanied by acts which, if not interrupted, will be followed by bodily injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance." Now, there may be an intent to commit violence, and this accompanied by acts preparatory thereto, which, if followed up, would clearly constitute an assault; yet, owing to the distance and surrounding circumstances, no possible assault would have been committed. Thus, one with a direct intent to do grievious bodily harm may purchase a deadly weapon, or having one he may, with like intent, put it in a condition...