People v. Miller

• Citation: 91 Mich. 639,52 N.W. 65
• Court: Michigan Supreme Court
• Decision Date: 13 May 1892
• Parties: PEOPLE v. MILLER.

52 N.W. 65

91 Mich. 639

PEOPLE v. MILLER.

Supreme Court of Michigan

May 13, 1892

Error to circuit court, Jackson county; ERASTUS PECK, Judge.

Reuben Miller was convicted of an assault with intent to do great bodily harm less than murder, and appeals. Affirmed.

John M. Corbin, for appellant.

A. A. Ellis, Atty. Gen., and J. A Parkinson, Pros. Atty., for the People.

MORSE C.J.

The respondent was convicted of assault with intent to do great bodily harm, less than the crime of murder, and sentenced to the state's prison at Jackson for one year. There is no doubt that Miller committed an assault and battery, and without provocation, upon one John Dickinson, at Springport in the county of Jackson, on the 15th day of November, 1891 but it is claimed by respondent's counsel that the testimony shows that there was no intent to do any great bodily harm in this assault; that the two men had always been friendly, no previous malice existing in respondent's mind towards Dickinson, and there were no threats preceding the attack, and no motive shown why respondent should have contemplated doing Dickinson any serious or permanent injury. It is contended that the blow and the kick were one act, and done without premeditation, in a moment of impulse and excitement. The court was requested to charge the jury that respondent could not be convicted of any higher crime than assault and battery. It appears from the evidence that Miller was a drinking man, and in the habit of getting intoxicated; that his wife had left him once or twice on account of his drinking, and returned to him again. On the day of the assault upon Dickinson respondent was about to tap a barrel of cider, and his wife told him that, if he did, she should go away. He opened the cider barrel, and she left. In the evening, somewhat under the influence of drink, he started in a buggy, with a young man by the name of Eckhart, to find his wife. He went to several places, and finally found her at Dickinson's, and demanded that she go home with him, which she did. Before she went away with him he had a talk with Dickinson, in which he blamed the latter for harboring his wife. His wife, who was in bed, got up, dressed herself, and went out of doors, and talked with Miller. He was very angry at her, and was quite profane and abusive in his language. The wife went back into the house, and Dickinson stepped out, thinking, as he said, to quiet respondent. According to Dickinson's testimony, he had no more than met Miller, when respondent struck him with his closed fist, knocking him down, and kicked him, as he was falling down, saying, "I will kick your God damn liver out." He then turned round, and broke the window with his hand. Dickinson got up, and went over to a neighbor's, where he fainted a way from his injuries. One of his ribs was fractured, and his kidneys injured, and he was sick for some time thereafter. If it were not for the language used and accompanying the act of kicking, we should be inclined to accept the theory of defendant's counsel that the evidence would not warrant the conviction in this case of the higher crime charged. But the language used, and the place where the blow from the foot struck the body of Dickinson, were evidence tending to show that the respondent intended to kick Dickinson in a vital spot, and where a kick might do serious and permanent injury. It is true that the question in a case like this is not what was the effect or result of the blow, but what was the intent with which it was given; but here the respondent intimated that he desired to kick the liver out of Dickinson, and the blow was evidently aimed at a part of the body where a kick would naturally do great bodily injury, if sufficient force was used.

The court correctly instructed the jury that the result of the blow or kick should not be used as evidence to show the intent with which such blow or kick was given, unless they found, beyond a reasonable doubt, that such result was contemplated by Miller when he made the assault. "And in determining whether those results were contemplated, you should aid your judgment by considering the means employed and the manner of their use,-whether they would naturally lead to such results,-so as to see whether a person using those means, and using them in a manner and under the circumstances that Miller used them, would naturally contemplate, and so intend, the consequences which...