Chrisman v. State

• Decision Date: 28 February 1891
• Parties: CHRISMAN v. STATE.
• Court: Arkansas Supreme Court

15 S.W. 889

CHRISMAN v. STATE.

Supreme Court of Arkansas.

February 28, 1891.

Appeal from circuit court, Johnson county; J. G. WALLACE, Judge.

Thos. Boles and A. S. McKennon, for appellant. W. E. Atkinson, Atty. Gen., for the State.

MANSFIELD, J.

The appellant was convicted of an assault with intent to kill and murder F. J. Stanfield. The statute under which the indictment was found declares that "whoever shall feloniously, willfully, and with malice aforethought assault any person, with intent to murder or kill, * * * shall, on conviction thereof, be imprisoned in the penitentiary not less than three nor more than twenty-one years." Mansf. Dig. § 1567. It has been frequently held by this court that an indictment under this section of the criminal law cannot be sustained unless the evidence would have warranted a conviction for murder, if death had ensued from the assault charged to have been committed. Lacefield v. State, 34 Ark. 275, and cases there cited. But it has never been ruled here that such evidence will in every case be sufficient. On the contrary, the decision in the case of Lacefield v. State, cited above, and that in Scott v. State, 49 Ark. 156, 4 S. W. Rep. 750, both distinctly recognize the doctrine laid down by Bishop, that an attempt to commit a crime, such as the attempt charged in this indictment, is an offense consisting of two elements, — "an evil intent and a simultaneous resulting act." Commenting on this class of crimes, Mr. Bishop says: "When we say that a man attempted to do a thing, we mean that he intended to do, specifically, it; and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part. Thus, to constitute murder, the guilty person need not intend to take life; but, to constitute an attempt to murder, he must so intend. * * * The intent must be specific to do some act which, if it were fully performed, would constitute a substantive crime. Therefore * * * general malevolence is not sufficient, even though of a sort which, added to the appropriate act, would constitute an ordinary substantive offense." After further comment on this subject, the same author says: "The doctrine of an intent in law, differing from the intent in fact, is not applicable to these technical attempts; and if the prisoner's real purpose were not the same which the indictment specifies, he must * * * be acquitted; * * * for the charge is that the defendant put forth an act whose criminal quality or aggravation proceeded from a specially evil intent prompting it, and in reason we cannot first draw an evil intent from an act, and then enhance the evil of the act by adding this intent back to it." 1 Bish. Crim. Law, §§ 729-731, 735. In Lacefield's Case the court said that, while "it is true that every person is presumed to contemplate the ordinary and natural consequences of his acts, such presumption does not arise where the act fails of effect, or is attended by no consequences; and, where such act is charged to have been done with a specific intent, such intent must be proved, and not presumed from the act." As an application of this doctrine, it was held in that case that where one, "intending to kill A., shoots and wounds B., * * * he cannot be convicted of an assault with intent to kill B." In Scott v. State, 49 Ark. 156, 4 S. W. Rep. 750, the defendant was charged with an assault upon one Bannister with intent to kill and murder him; and the trial court instructed the jury that, if they believed from the evidence that the defendant shot at some one other than Bannister, or if they had "a reasonable doubt as to whom the defendant intended to shoot," they should acquit the defendant, unless they "further found from the evidence that the defendant shot into the house of Bannister, and into a crowd where he (Bannister) was at the time situated, without provocation, and when all the circumstances of the shooting showed an abandoned and wicked disposition, and a reckless disregard of human life." But this court held that, as the "essence" of the crime charged was the specific intention to take the life of Bannister, it was necessary to prove the intent laid in the indictment to the satisfaction of the jury; and the...