Botsch v. State

• Decision Date: 16 January 1895
• Citation: 61 N.W. 730,43 Neb. 501
• Parties: BOTSCH ET AL. v. STATE.
• Court: Nebraska Supreme Court

43 Neb. 501

61 N.W. 730

BOTSCH ET AL.

v.STATE.

Supreme Court of Nebraska.

Jan. 16, 1895.

Syllabus by the Court.

1. An essential element of the crime of assault with intent to commit murder is the actual intent to take life, and, when an offense is constituted by statute of an act combined with a particular and specific intent, proof of the intent is just as indispensable as proof of the act.

2. Where an information contained two counts, one of an assault with intent to commit murder and the second of an assault with intent to do great bodily injury, and there was no evidence to support the charge set forth in the first count, it was error which was calculated to confuse and mislead the jurors, and prejudicial to the parties on trial under the complaint, to submit to the jury the question of the guilt or innocence of such parties of the crime charged in the first count, although they were not convicted of such crime.

Error to district court, Colfax county; Marshall, Judge.

George Botsch and Peter Botsch, each convicted of assault with intent to do great bodily harm, bring error. Reversed.Phelps & Sabin, for plaintiffs in error.

Geo. H. Hastings, Atty. Gen., for the State.

HARRISON, J.

The plaintiffs in error were arrested, and, with others, jointly informed against in the district court of Colfax county. The information contained two counts, in one of which the parties were charged with an assault with intent to kill and murder one Bernard C. Zitting, and in another with an assault upon said Zitting with intent to do great bodily injury. The parties were duly tried, and adjudged by the jury, in their verdict, not guilty of the charge in the first count of the information, and guilty as charged in the second. After overruling their motions for a new trial, the court sentenced plaintiffs in error to a term in the penitentiary, and they have prosecuted error proceedings to this court.

The trial court gave to the jury a very full and complete charge, and one which, in many respects, might serve as a model. It contained an exposition of the rules of law deemed by the court applicable to the crime charged in the first count of the information,--i. e. assault with intent to commit murder; further, as to the crime of assault with intent to do great bodily injury; and also as to assault and battery, the lesser crime included in the charge of the greater ones set forth in the information. One assignment of error is as follows: “The court erred in submitting to the jury the guilt or innocence of the defendants upon the first count in the information.” In support of this assignment, counsel for plaintiff in error contend that the evidence was insufficient to sustain a conviction on the first count of the information, principally for the reason that there was no evidence of an intent to commit murder; arguing that to support a charge of an assault with intent to commit murder the specific purpose or intent to commit the crime of murder must be shown to have existed, and have been frustrated by some act, not of the will of the parties charged; that in a criminal case the court should not submit to the jury, for their consideration, a charge for a crime contained in one count of an information, of which the evidence would not sustain a conviction; and, if that is done, the fact that no conviction ensued on such count does not sufficiently excuse such action, and does not cure the error, or make it without prejudice. The two main elements of the crime charged in the first count of the information--an assault with intent to commit murder--are the assault and the intent to kill or murder. Of these the intent is a mental process, and, as such, generally remains hidden within the mind wherein it was conceived, and is rarely, if ever, susceptible of proof by direct evidence, but must be inferred or gathered from the outward manifestations, shown by the words or acts of the party entertaining it, and the facts or circumstances...