Cowley v. State

• Decision Date: 31 December 1882
• Citation: 78 Tenn. 282
• Parties: Charles Cowley v. The State.
• Court: Tennessee Supreme Court

78 Tenn. 282

Charles Cowley

v.The State.

Supreme Court of Tennessee.

December Term, 1882.

FROM LINCOLN.

Appeal in error from the Circuit Court of Lincoln County. J. J. WILLIAMS, J.

J. H. HOLMAN for Cowley.

ATTORNEY-GENERAL LEA for the State.

COOPER, J., delivered the opinion of the Court.

The prisoner was indicted for an assault on William G. Gray “by then and there, while riding along and passing the dwelling-house of said Gray, shooting into said dwelling-house, and through the door thereof.” Having been convicted, he has appealed in error.

The prosecutor, William G. Gray, lived with a wife and five children in a cabin containing only one room. The family were all in the room, seated at a table placed in front of the door, and the prosecutor was about to sit down at the table himself, to eat supper, when the defendant shot with a pistol at the house, the ball passing through door and falling in the floor. The defendant was riding, with other persons, along the path or road about twenty or thirty yards in front of the cabin when he fired the pistol. The witness who proves that the shot was fired by the defendant, was riding with the defendant, and testifies that when opposite to the house, the defendant said: “Here is where old Hannah Ashby lives, and old Neese Gray is always there with her. Let us shoot into the house and scare old Neese and see him run.” The witness further testifies that Hannah Ashby was a prostitute, who had lived in that neighborhood for many years, and that Neese Gray was the father of the prosecutor. He added that he did not know whether the defendant knew that William G. Gray, the prosecutor, lived in the house, or not.

The court, among other things not excepted to, charged the jury: “If the assault was made to injure other persons who were supposed to be in the house, but who were not there, and the house was occupied by other persons not known to the defendant, still there would be an assault on those who were there, and on each and every one of them. And if the evidence should show that the accused fired the pistol into the house supposing Neese Gray and others were there, with a view to injure him or frighten him, or run him off, when in fact he was not there, but the house was occupied at the time by the prosecutor, William G. Gray, and his family, then it would be an assault on him.” The counsel of the defendant insists that this charge is erroneous, because the assault must be made on the person intended, and besetting a house is not an assault on its inmates.

An assault, it is true, is an attempt, or the unequivocal appearance of an attempt, to do a corporal injury to another, the intent to do harm being essential: Richels v. State, 1 Sneed, 606;Bass v. State, 6 Baxt., 588. It is also true that the besetting of a house is only a constructive, not an actual assault: Evans v. State, 1 Hum., 399; State v. Freels, 3 Hum., 328. So, the shooting into a house for the purpose of injuring an inanimate object, as an obnoxious transparency in a window, with no design of personal injury, may not be an assault: United States v. Hand, 2 Wash. C. C., 435. But an assault upon a house will be regarded as an assault on the person when the...