State v. Fiske

• Decision Date: 25 October 1893
• Citation: 63 Conn. 388,28 A. 572
• Parties: STATE v. FISKE.
• Court: Connecticut Supreme Court

28 A. 572

63 Conn. 388

STATE

v. FISKE.

Supreme Court of Errors of Connecticut.

Oct. 25, 1893.

Appeal from superior court, Hartford county; R. Wheeler, Judge.

George Fiske was convicted of assault with intent to murder, and appeals. Affirmed.

J. L. Barbour, for appellant.

G. A Conant and A. F. Eggleston, for the State.

CARPENTER, J. The charge is that the accused, "with force and arms, in and upon one Julius H. Clark, in the peace then and there being, willfully and feloniously did make an assault, and with a certain knife, which he, the said George Fiske, then and there had and held, did then and there willfully, and of his malice aforethought, strike, cut, and stab the said Julius H. Clark in and upon his neck and throat and other parts of his body, with intent him, the said Julius H. Clark, willfully, feloniously, and of his malice aforethought, to kill and murder," etc. A second count charges him with the same offense upon the persons of said Clark and one James Nolan. Only one offense was claimed. On the trial the counsel for the accused claimed as a matter of law that, "to convict the accused of an assault with intent to murder, the state must prove the assault to have been committed willfully, deliberately, premeditatedly, and of malice aforethought," and requested the court to charge the jury as follows: "The accused is charged with assault, with malice aforethought, with intent to commit murder. In order to sustain this charge, every element needed to convict of the crime of murder must exist and be proved, except the death of the assaulted party. There must be malice aforethought, premeditation, deliberation, and an intent to kill. If any of these elements are not proved, the accused cannot be convicted of assault with intent to murder. 'With deliberation,' means, not hastily or rashly, but coolly and with careful consideration. 'With premeditation' means with previous design formed. Unless the accused did this cutting coolly, deliberately, and with a premeditated intent to take the lives of either Clark or Nolan, he cannot be convicted of assault with intent to murder." The court declined to charge the jury fully in accordance with this request, but, after referring to some other matters, charged them as follows: "But the state goes further, and has alleged another element of criminality in this cast;—the element of malice, which is not necessary in the offense known as assault with intent to kill. And if the evidence justifies you in finding that the element of malice existed in this case, beyond a reasonable doubt, as well as the assault with intent to kill, then the state will have made out the full offense as charged. I have to say to you that no deliberation or previous design or premeditation is necessary to constitute this offense of an assault with intent to kill and murder with malice aforethought. There are necessary only the assault, the intent to kill, and the malice aforethought; no deliberation being necessary."

A part of this charge, if taken by itself, was liable to be misunderstood. For instance, when the jury were told that if the element of malice existed, without the qualifying word "aforethought," it was sufficient, they might, unless that was considered in connection with all that was said on that subject, have inferred that if simple...