Dunaway v. People of State

• Decision Date: 13 June 1884
• Citation: 1884 WL 9889,110 Ill. 333,51 Am.Rep. 686
• Parties: JOHN A. DUNAWAYv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

110 Ill. 333

1884 WL 9889 (Ill.)

51 Am.Rep. 686

JOHN A. DUNAWAY

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 13, 1884.

WRIT OF ERROR to the Circuit Court of Williamson county; the Hon. D. M. BROWNING, Judge, presiding.

Mr. JAMES M. GREGG, for the plaintiff in error:

If the defendant shoots at C, with the intention of killing him, and by accident misses C and shoots D, in the crowd, and in range, without any intent to injure D, he can not be held liable for an assault with intent to murder D. The charge is not for what the defendant did, but 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. 1 Bishop on Crim. Law, (1st ed.) sec. 514. If the prisoner's real intent is not the same which is laid in the indictment, he must be acquitted. 1 Bishop on Crim. Law, (3d ed.) sec. 666; Morgan v. State, 13 S. & M. 242; State v. Beaver, 5 Del. 505.

The intent charged, which constitutes the gist of the offence, must be specifically proved. State v. Neal, 37 Maine, 470; Wharton on Crim. Law, 316; 3 Greenleaf on Evidence, secs. 13, 17.

The intent is a question of fact, and it is error to instruct that the law presumes every man intends the natural, necessary and probable consequences of his act. State v. Stewart, 29 Mo. 419.

In burglary, if the entry is alleged to have been made with intent to commit a specific felony, the indictment is not sustained by proof of an entry with intent to commit another felony. Morgan v. State, 13 S. & M. 242; 2 East's Pleas of the Crown, 514; Roscoe on Crim. Evidence, 328; 3 Greenleaf on Evidence, sec. 17.

The court erred in refusing defendant's instruction that “proof of criminal carelessness or recklessness will not sustain an indictment for an assault to murder.” 1 Bishop on Crim. Law, (3d ed.) sec. 396; State v. Sloanaker, 1 Del. 62.

Mr. WILLIAM W. CLEMENS, State's Attorney, and Mr. JAMES MCCARTNEY, Attorney General, for the People:

Intent to murder--an element in the offence charged--may be implied from highly dangerous, malevolent and reckless conduct resulting in injury, or it may consist of a transfer in law of an intent to murder one, to another actually wounded by the murderous assault perpetrated.

The extracts from Bishop's Criminal Law, and Wharton's Criminal Law, and Greenleaf's Evidence, appearing in the brief of the plaintiff in error, must be taken from the early editions, as they are not found in the latest, as quoted; yet it is probably true Mr. Bishop, in his latest edition, claims the law to be generally as insisted by the plaintiff in error. Yet Bishop lays down the broad and general rule that a criminal actor is equally responsible for the results of his wrongdoing where the consequences fall upon objects outside of those intended by him. 1 Bishop on Crim. Law, (6th ed.) secs. 327, 330, and note; Wharton on Crim. Law, (8th ed.) sec. 820; State v. Bullock, 13 Ala. 413; McCoy v. State, 3 Eng. 451; State v. Boyden, 13 Ind. 505.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

In the indictment presented by the grand jury of Williamson county, against James A. Dunaway, he is charged with an assault, with intent to commit murder, upon the person of Hartwell Hendrickson. On the trial at the November term, 1883, of the circuit court of that county, defendant was found guilty, and sentenced to the penitentiary for a period of six years.

There is very little conflict in the evidence, and the material facts can be readily ascertained. It appears that on the evening of January 4, 1883, defendant was at the door of a store in the village where the parties reside, talking with some one that was sweeping the sidewalk, when Dow Hartwell was about to pass into the store. Some conversation not of an angry character occurred between defendant and Hartwell, as to whether the latter would commence other proceedings against defendant. Shortly afterwards defendant entered the store where Hartwell and several other persons were standing or sitting around the stove, among whom was Hartwell Hendrickson. It seems Hartwell is an attorney at law, and had commenced proceedings on behalf of defendant's wife for divorce from him, but whether defendant entertained any ill-will against Hartwell on that account does not certainly appear. But little was said by defendant after he entered the store and approached the stove where the parties were, before he drew a revolver and shot towards Hartwell, the ball taking effect on Hartwell Hendrickson, inflicting a very serious wound. A second shot was fired, but it did not hit any one.

Defendant was no doubt under the influence of intoxicating liquors at the time of the shooting, yet not so drunk but what he knew most, if not all, that occurred. It is not pretended by defendant, or any one for him, the pistol was accidentally discharged. His own testimony is: “I shot it because I wanted to.” He also says he “had no feeling against either Hendrickson or Hartwell.” The judgment might be sustained on the ground the intention was sufficiently proved to kill and murder Hendrickson. He shot in the direction he was standing, and the law is, a party intends the necessary consequences of an act deliberately done. Giving that construction to the evidence, the instructions given by the court for the People contain nothing calculated to mislead the jury.

Section 24 of the Criminal Code, under which defendant was indicted, provides: “Whoever attempts to commit murder, * * * by any means, shall be guilty of the crime of an assault with intent to commit murder,” and the theory of the defence is, that if defendant intended to kill and murder any one, it was Hartwell. The evidence, in some degree, at least, warrants this view of the case. The conversation at the door of the store, before the parties entered, shows defendant had some ill-feeling towards Hartwell. His inquiry whether Hartwell was going to “get up another suit” against him, shows unkind feeling, to say the least of it. On the hypothesis the defendant intended to murder Hartwell, the argument is, the shooting of Hendrickson was not intended, and therefore defendant could not be guilty, under the statute cited, of an assault with an intent to murder Hendrickson. The law is, that had defendant shot at Hartwell with intent to murder him, but killed Hendrickson, the killing of the latter would have been murder at common law. The rule in such cases rests on the fact there was the felonious intent to commit murder. It is said when an unlawful act in itself is done with deliberation, and with the intention of killing or inflicting serious bodily harm, though the intention be not directed to any particular person, and death ensue, it will be murder at common law. Thus, if a party fires a gunshot...