Merritt v. Commonwealth

• Decision Date: 13 June 1935
• Citation: 164 Va. 653
• Court: Virginia Supreme Court
• Parties: LEWIS MERRITT v. COMMONWEALTH OF VIRGINIA.

Page 653

164 Va. 653

LEWIS MERRITT v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Virginia, Wythebille.

June 13, 1935.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning and Eggleston, JJ.

1. HOMICIDE — Attempt to Commit Homicide — Indictment — Case at Bar — In the instant case, a prosecution for attempted murder, the indictment charged that accused feloniously attempted to commit the crime of murder by pointing a loaded pistol at another who was within carrying distance of the pistol. Error was assigned to the action of the trial court in overruling a demurrer to the indictment.

Held: That the court was clearly right in overruling the demurrer, as the indictment charged the accused with the commission of a crime by maliciously pointing a loaded gun at another, who was within shooting range.

2. WEAPONS — Pointing Loaded Pistol at Another. — The act of maliciously pointing a loaded gun at another, who is within shooting range, with no specific evil intent, constitutes a misdemeanor and not a felony.

3. ATTEMPTS AND SOLICITATION TO COMMIT CRIME — Elements. — An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.

4. ATTEMPTS AND SOLICITATION TO COMMIT CRIME — Indictment. — The indictment for an attempt to commit a crime should charge both the intent and the overt act.

5. ATTEMPTS AND SOLICITATION TO COMMIT CRIME — "Attempt" and "Intent" Distinguished — "Attempt" Embraces Meaning of "Intent." — "Attempt" embraces the full meaning of "intent," the only distinction between an "intent" and an "attempt" being that the former implies purpose only, while the latter implies both purpose and the effort to carry that purpose into effect.

6. HOMICIDE — Attempt to Commit Homicide — Indictment — Indictment Charging Assault Only — Case at Bar. — In the instant case, a prosecution for attempted murder, the indictment charged that accused feloniously attempted to commit murder by maliciously pointing a loaded pistol at another, who was within carrying distance of said pistol, and "in the manner and form above set forth, did attempt to kill and murder" such other person.

Held: That the only crime charged in the indictment was an assault, with no specific intent to kill and murder alleged.

7. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Indictment Alleging Facts Constituting Misdemeanor — Pleader Cannot Elevate Crime to Felony by Calling It Such. — If the facts alleged in an indictment constitute a misdemeanor, the crime cannot be elevated to a felony simply by being so called by the pleader.

8. ASSAULT AND BATTERY — Elements of Assault. — In order to constitute an assault there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do physical injury to the person of another.

9. HOMICIDE — Attempt to Commit Homicide — Necessity for Specific Intent to Kill. — While a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill.

10. ATTEMPTS AND SOLICITATION TO COMMIT CRIME — Section 4767 of the Code of 1930 — Common-Law Definition of Attempt Not Changed. — Section 4767 of the Code of 1930, does not undertake to state what shall constitute an attempt to commit a crime. It provides that every person who makes an attempt, and in such attempt does any act towards its commission, shall be punished. The common-law definition of attempt is not changed.

11. CRIMINAL LAW — Intent — Intent Constituting Element of Attempt Is Intent in Fact. — Intent is the purpose formed in a man's mind, and is usually proved by his conduct, sometimes by his statements; the necessary intent constituting one element in an attempt is intent in fact, as distinguished from an intent in law.

12. HOMICIDE — Attempt to Commit Homicide — Indictment — Necessity for Alleging Specific Intent to Kill — Case at Bar. — In the instant case, a prosecution for attempted murder, the indictment charged that accused feloniously attempted to commit murder by maliciously pointing a loaded pistol at another, who was within carrying distance of said pistol, and, "in the manner and form above set forth, did attempt to kill and murder" such other person.

Held: That the act charged was an assault, and in order to raise it to a more substantive crime, it must be done with a specific intent to take life. The intent could not be inferred from the act alleged.

13. HOMICIDE — Attempt to Commit Homicide — Indictment — Indictment Failing to Allege Specific Intent to Kill — Case at Bar. — In the instant case accused was convicted of attempted murder under an indictment charging that accused feloniously attempted to commit murder by maliciously pointing a loaded pistol at another, who was within carrying distance of said pistol, and, "in the manner and form above set forth, did attempt to kill and murder" such other person.

Held: Error. The indictment did not allege that the assault was committed with the specific intent to kill, and such specific intent could not be inferred from the allegation that accused maliciously pointed a loaded pistol at another.

Error to a judgment of the Circuit Court of the city of Hopewell.

The opinion states the case.

J. Toomer Garrow, for the plaintiff in error.

Abram P. Staples, Attorney-General, and Edwin H. Gibson, Assistant Attorney-General, for the Commonwealth.

HUDGINS, J., delivered the opinion of the court.

This writ of error brings under review proceedings of a trial in which the accused was convicted of attempted murder, and sentenced to eight years in the penitentiary. The first error assigned is to the action of the court in overruling the demurrer to the indictment. The indictment, with some parts deleted, reads thus:

"The grand jurors * * * present that, Lewis Merritt did, on the 25th day of March, 1934, * * * feloniously attempt to commit the crime of murder by then and there with a pistol, * * * charged and loaded * * * which * * * he, * * * then and there feloniously, wilfully and of his malice aforethought, did point at and towards one P. H. Trull, he, the said Lewis Merritt, at this time being close enough to the said P. H. Trull, to be within carrying distance of said pistol, and so the jurors of the Commonwealth of Virginia, upon their oaths do say that Lewis Merritt, then and there, in the manner and form above set forth, did attempt to kill and murder the said P. T. Trull, against the peace and dignity of the Commonwealth of Virginia." (Italics supplied.)

The demurrer interposed stated that the indictment "is not sufficient in law, in respect of the terms in which it purports to charge an attempt to commit murder."

While no grounds of objection were stated to the action of the court in overruling the demurrer, at every stage of the proceedings, including the motion to set aside the verdict, accused contended that the indictment did not allege facts which would justify a conviction of an attempt to murder P. H. Trull.

The record is not well prepared and the objections are meagerly stated. However, it does appear that the main question here presented was raised in the lower court. This is shown not only in the record itself but in an able written opinion filed by the learned trial judge.

1, 2 The court was clearly right in overruling the demurrer, as the indictment charged the accused with the commission of a crime by maliciously pointing a loaded gun at Trull, who was in shooting range. This act, with no specific evil intent, constitutes a misdemeanor and not a felony. The Commonwealth, by filing a bill of particulars, seems to have undertaken to elevate the crime charged in the indictment from a misdemeanor to a felony, in that it states that the accused shot the pistol at Trull, who was in carrying range, "with intent to attempt to commit murder," a rather peculiar wording of notice to the accused of a specific intent intended to be charged against him. The motion to reject the bill of particulars was overruled, to which ruling an exception was noted, though the grounds of objection were not stated. However, as the principal question presented is whether the indictment is sufficient to support the conviction of an attempt to commit murder, we will not further discuss the action of the court in overruling the motion to reject the bill of particulars.

This court has been liberal in sustaining indictments charging an attempt to commit a crime under section 4767 of the Code, as amended by Acts 1930, chapter 32, page 30, but in no case has a felony charge been sustained on an indictment similar to the one now under consideration.

3 "An attempt to commit a crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation." Thacker Commonwealth, 134 Va. 767, 114 S.E. 504, 505. See also, Dixon Commonwealth, 162 Va. 798, 173 S.E. 521, 523.

4 The indictment should charge both the intent and the overt act. Under the above statute, we have held that where the intent appeared as a part of the act alleged it need not be expressly stated. In Cunningham's case, 88 Va. 37, 13 S.E. 309, and Broaddus Commonwealth, 126 Va. 733, 101 S.E. 321, 323, the charge was that the accused, with force and arms, violently and feloniously made an assault upon the prosecutrix, and "did attempt to ravish and carnally know" her "against her will and by force."

5 In each of these, and other cases, it was held that the specific intent to commit the crime charged was sufficiently alleged and might be inferred, either from the nature of the act alleged or from the...