Smith v. State
| Decision Date | 30 January 1888 |
| Parties | SMITH v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.
Indictment for an assault with intent to murder. The defendant in this case, Giles Smith, was indicted for an assault on Wash Thompson, with the intent to murder him, was found guilty as charged, and sentenced to hard labor for the county for the term of two years. The prosecutor, who was the only witness examined on the part of the state, testified to an unprovoked assault made on him by the defendant with an axe, at or near the defendant's house, whither he had gone to borrow a stick of wood from the defendant's wife, while the defendant, testifying as a witness for himself, stated that he overheard the prosecutor making insulting proposals to his wife, and, on entering the house, was first assaulted by the prosecutor with a knife. The court instructed the jury, among other things, "that if the defendant heard the prosecutor make improper or indecent proposals to his wife this is such provocation as might create such heat of blood in the defendant as would cause him to strike in consequence of heat of blood, and not in consequence of malice, that it is for the jury to say in this event, in the light of all the evidence, whether the defendant made the assault in the heat of blood or with malice aforethought; that this heat of blood must be such as to entirely dethrone reason, and the assault must be made in consequence of such heat of blood; and if so made it was not made with malice." The defendant excepted to that part of the charge which is italicized. The defendant requested the following charge, in writing: "The proposition that if death had ensued under the facts and circumstances of the case, it would have been murder or manslaughter, is no criterion by which to judge of the guilt or innocence of the defendant." The court refused this charge, and the defendant excepted. Parks & Son, for appellant.
Thos. N. McClellan, Atty. Gen., for appellee.
The court, after having charged the jury that if the assault was made in the heat of blood on a sufficient provocation, and not with malice, the accused would not be guilty of an assault with intent to murder, instructed them that the heat of blood must be such as to entirely dethrone reason. To constitute the offense with which the defendant is charged the specific intent must exist. It does not...
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