Smith v. State

• Citation: 70 Tenn. 614
• Parties: Jim Smith v. The State.
• Decision Date: 30 April 1879
• Court: Tennessee Supreme Court

70 Tenn. 614

Jim Smith

v.The State.

Supreme Court of Tennessee.

April Term, 1879.

FROM SHELBY.

Appeal from Criminal Court of Shelby County. J. E. R. RAY, J.

T. H. LOGWOOD for Plaintiff in Error.

ATTORNEY-GENERAL LEA for the State.

DEADERICK, C. J., delivered the opinion of the Court.

The plaintiff in error was indicted in the Criminal Court of Memphis, for an assault with intent to commit murder in the first degree, under sec. 4626 of the Code.

The judge instructed the jury correctly as to the offense charged in the indictment, and told them if they thought the evidence would not justify a verdict for that offense, that the indictment also embraced a charge of an assault with intent to commit murder in the second degree, a charge of an assault with intent to commit voluntary manslaughter, and the further charge of an assault and battery. His Honor also correctly defined what would constitute murder in the second degree, voluntary manslaughter, assault, and assault and battery.

Under the foregoing instructions of the court, the jury rendered a verdict of guilty of an assault with intent to commit murder in the second degree. The evidence is not set out in the record.

This verdict is a virtual acquittal of the charge of an assault with intent to commit murder in the first degree. 3 Hum., 25; 1 Bish. Cr. L., sec. 888; 2 Whar. Cr. L., sec. 1123. In respect to a conviction of assault and battery, this may be had under the express authority of the act of 1832, ch. 32; sec. 5223 of the Code. An assault with intent to commit murder in the first degree, is a statutory offense, created by the act of 1829. Code, sec. 4626. And it has been held by this court, that in order to convict of the offense charged, under this act, it must appear that the assault was of such a character and made under such circumstances, that had death ensued, the offender would have been guilty of murder in the first degree. 2 Hum., 439;9 Hum., 455.

The question presented in this record is whether under this indictment a conviction of assault with intent to commit murder in the second degree can be sustained. A majority of the court is of opinion that it can be, under sec. 5222 of the Code, which is as follows:

“Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of any attempt to commit the offense; and the defendant may also be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether it be a felony or misdemeanor.”

In this conclusion I do not concur. In my opinion, the statute which is brought into the Code in sec. 4626 was intended to punish only an assault with intent to commit murder in the first degree, and no other inferior offense. But after its passage, it appeared that offenders prosecuted under it often escaped, or that offenses were prosecuted under it that did not amount to the degree of criminality requisite to a conviction, and the act of 1832 was passed allowing the jury to acquit of the felony charged and convict of a simple assault or assault and battery, so that offenders who deserved some punishment might not wholly escape. But there is no statute which gives the jury, where an intent to commit a specific crime is charged, power to convict of an intent to commit a different crime.

Section 4630 of the Code makes an assault with intent to commit a felony or an attempt to commit one, a felony, and prescribes the punishment. And it is by this section that an assault with intent to commit murder in the second degree or manslaughter is made a felony, and not by sec. 4626. But the new felony so created should be charged by indictment, and the specific intent necessary to constitute the offense should also be charged and proved. For it is the intent, purpose and design with which the assault is made, that determines the question of guilt. And it is indispensable not only that the specific intent should be charged, but that it should be proved precisely as it is charged in the indictment.

The offense charged is not the actual commission of the crime, which might include different degrees or other offenses, but is a charge of an assault with a single intent to commit a specific offense. It is the intent with which the assault is committed that constitutes the offense. The intent only gives the assault its felonious character. The intent forms the gist of the offense, and where the intent constitutes the offense it must be proved. 1 Whar. Cr. Law, sec. 1279; 2 Swan, 399. And if the prisoner's real intent were not the same which the indictment specifies, he must be acquitted. 1 Bish. Cr. Law, sec. 666.

In this case the indictment charges an intent to commit murder in the first degree. Here is a direct charge of a single intent to commit one specified offense. The intent with which the assault is committed is not susceptible of being divided, like murder actually consummated, into grades or degrees, nor can it be said to include an intent to do a different thing from that charged, but in the nature of it, being an intent to do a particular thing with specific penalty for that intent, excludes the idea of an intent to do another and different thing. In its nature it...