State v. Gilman

• Citation: 69 Me. 163
• Parties: STATE v. CHARLES B. GILMAN.
• Decision Date: 07 February 1879
• Court: Maine Supreme Court

69 Me. 163

STATE v. CHARLES B. GILMAN.

Supreme Judicial Court of Maine.

February 7, 1879

ON EXCEPTIONS.

This was an indictment charging the defendant in the first count with an assault upon one John Flood, with a dangerous weapon with intent to kill and murder; in the second count, an assault with intent to kill, and in the third count an aggravated assault.

At the trial, the defendant's counsel seasonably requested the presiding judge to give the following instructions to the jury, to wit:

" I. That it is incumbent upon the government, in order to sustain the charge under the first and second counts in the indictment, to prove beyond a reasonable doubt, that the specific intent there charged actually and in fact existed in the mind of the defendant, at the time he committed the act that it is incumbent upon the government, if it would establish an intent to kill, to prove beyond a reasonable doubt, that, at the time he committed the act, the defendant in fact intended and designed to take life.

II. It is not sufficient to establish the intent charged that the act might have been manslaughter or murder, in case death had ensued from it; and no legal presumption arises that the defendant actually and in fact intended to kill or murder from the fact that it might have been manslaughter or murder in case death had ensued.

III. The principle of law that every person is presumed to contemplate the ordinary and natural consequences of his own act, is applicable to cases where death actually ensues; if death does not ensue, then there is no presumption of law arising from the act alone that death was intended; and if no consequences at all follow the act, there is no presumption of law that any consequences at all were intended or contemplated.

IV. That, if the defendant in fact intended to kill Mr. Noyes, no presumption arises from that fact that he intended to kill John Flood.

V. From the fact that the defendant inflicted a wound with a shot-gun upon the lower part of the leg of John Flood, no legal presumption arises that he intended to wound John Flood in a vital part.

VI. From the fact that defendant pointed and discharged a shot-gun at the legs of John Flood, no legal presumption arises that he actually intended any other consequences than those which in fact resulted from his act.

VII. Whether, under the circumstances and exigencies of this case, the defendant was justified in discharging a shot-gun at the legs of John Flood, upon the ground that said Flood and the body of men with him were in the act of taking possession of this close by force and violence, and for the purpose of expelling said body of men from said close, is a question of fact for the jury.

There is no rule of law which absolutely and under all circumstances prohibits the use of firearms in expelling from a close a body of men in the act of taking possession thereof by force and arms, amounting to more than ordinary trespass."

The presiding judge declined to give the foregoing instructions, otherwise than as the same appear in the charge as given.

To this refusal of the presiding judge to give the said instructions as requested; to that part of the charge, as given to the jury, relating to the intent to kill and the intent to kill and murder, and that part authorizing the jury to find the defendant guilty of an intent to kill Flood, if he discharged the gun with intent to kill Noyes and the charge took effect upon Flood; and to that part of said charge relating to the legal justification which defendant had for the act which he committed, and the right to use fire-arms for the purpose of expelling Flood and those with him from the close in question, under the circumstances disclosed by the evidence in this case, the defendant excepted.

The presiding judge, among other things, instructed the jury as follows:

" It is maintained by counsel that, if he had an intent to kill Mr. Noyes, and discharged the gun, and the charge took effect upon Mr. Flood, that the intent to kill Mr. Noyes is not sufficient to constitute the crime charged against the prisoner of intent to kill Mr. Flood. Upon this point in the case I instruct you that, if the prisoner in discharging the gun intended to kill Mr. Noyes or any other person, any one of the persons assembled there on that occasion, and the charge which he fired from the gun took effect upon Mr. Flood, that is sufficent to constitute the offense with which he is charged. The intent to kill characterizes the act, goes with it; and, if the blow reaches any person, it carries with it the criminal intent to kill and murder; and, if it takes effect upon a person other than the one intended, the crime is made out precisely the same as though the intention had been to kill and murder the person hit, precisely as if death had ensued from the wound inflicted. Though the intention of the party was not to kill the person hit, still, if his intention was to kill any person by a murderous assault, and the blow takes effect upon a person other than the one intended, it is sufficient to constitute the crime of murder if death ensues, and it is sufficient to constitute the crime charged in the indictment if death does not ensue."

E. F. Webb, county attorney, for the state.

E. F. Pillsbury, R. Foster & W. P. Whitehouse, for the defendant, contended, inter alia, that the rule given by the court seems to be, that the intent with which one party commits a criminal act towards another characterizes the act, goes with it, and is transferred by presumption of law to another party accidentally injured by the act, and constitutes the same offense in degree as intended towards the party sought to be injured. This rule holds good only where the same degree of injury sought to be inflicted upon the one person is actually inflicted upon the other. When the injury to the second party differs in degree from that intended towards the first, the presumption of law as to intent is governed by the extent of injury so received rather than by the actual intention towards the other.

Suppose Flood had been killed, and Gilman indicted for murder, and the evidence had shown conclusively that he had fired at Noyes with no other intention than to wound him in the foot, would that intent have gone with the act then and saved him from the crime of murder? Nothing is better settled than that the law would presume in such a case that the party intended what he actually accomplished, notwithstanding there was in fact no intention to kill anybody.

Is not the reverse true that, if A assault B with intent to kill him, but accidentally wounds C, he is to be held responsible, as to C, for what he actually did to him, rather than what he actually intended towards B? Is the grade of offense in such cases to be determined by the result of the incidental injury, or by the original intent, according as the one or the other may secure conviction of the higher grade?

Take the case given by Bishop, 256, as an illustration: " If one shoots into another's poultry, with intent to steal it, and undesignedly sets the house on fire, he is guilty of arson."

Reverse it, and suppose he discharges his gun into the house with the intent to set it on fire, but, instead of producing the result intended, the shot passes through the house and kills the poultry; would the killing of the poultry be punishable as an attempt to commit arson?

The general rule appears to be that the wrong intended but not done, and the wrong done but not intended, coalesce, and together constitute the same offense, not always in the same degree, as if he had intended the thing unintentionally done. 1 Bish. Crim. Law, c. 9, § 254.

In a note in the same section, a quotation from Eden Penal Laws, the following rule is given:

" The case should be considered in law as if the intent had been to do the thing which in fact was done." Rex. v. Holt, 7 Car. & Payne, 518. 32 E. C. L. 609.

If Gilman aimed at Noyes with intent to kill him, but accidentally and without intent, in fact, hit Flood in the leg, and is held liable by the law on the presumption that he intended the necessary, natural and probable consequences of the act, a conviction of intent to murder involves the idea that wounding Flood in the leg was not a natural and probable consequence, but that hitting him in a vital part would have been. If that were so in fact, if the wound received was not a natural or probable consequence of the act, he could not be held at all, for the law does not raise the presumption as to unnatural and improbable consequences. There were no other consequences than the wound in the leg, and if that was an unnatural and improbable result from the act, he should be acquitted. If it...