State,v,hager.

• Decision Date: 30 November 1901
• Citation: 50 W.Va. 370,40 S.E. 393
• Parties: STATE v HAGER.
• Court: West Virginia Supreme Court

40 S.E. 393

50 W.Va. 370

STATEvHAGER.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1901.

ASSAULT WITH INTENT TO KILL—INDICTMENT—VERDICT.

1. An indictment under section 9, c. 152, Code 1899, which charges that the defendant "did attempt" to murder another, is good, though it does not charge that the act constituting the attempt was done with intent to murder. The word "attempt" implies the "intent."

2. Upon an indictment under section 9, c. 152, Code 1899, for attempting to commit murder, the verdict may convict of an attempt to commit murder in either the first or second degree, and the verdict not only may, but must, specify the degree of the murder attempted.

(Syllabus by the Court.)

Error to circuit court, Boone county; Joseph M. Sanders, Judge.

Robert Hager was convicted of assault with intent to kill, and brings error. Affirmed.

S. C. Burdette, for plaintiff in error.

Edgar P. Rucker and L. C. Anderson, Atty. Gen., for the State.

BRANNON, P. Robert Hagar was convicted by a jury in the circuit court of Boone county upon an indictment charging that he "on the 9th day of April, 1899, in the said county of Boone, being then and there armed with a dangerous and deadly weapon, to wit, a gun and pistol loaded with gunpowder and leaden bullets, which said gun and pistol the said Robert Hagar in his hands then and there had and held, in and upon one Henry Ball an assault did make, and him, the said Henry Ball, did then and there unlawfully and feloniously, attempt to feloniously, willfully, maliciously, deliber-ately, and unlawfully slay, kill, and murder, by then and there presenting and aiming said gun and pistol at the said Henry Ball, be, the said Henry Ball, being then and there in shooting distance in the range of said gun and pistol, and that the said Robert Hager did then and there feloniously, willfully, maliciously, deliberately, and unlawfully discharge said gun and pistol so loaded as aforesaid, and presented and aimed at the said Henry Ball-as aforesaid, but he, the said Robert Hager, was then and there prevented from hitting and failed to hit the said Henry Ball, and was prevented from committing and failed to commit the said murder. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Robert Hager, in the county aforesaid, on the day and year aforesaid, and in the manner and form aforesaid, him, the said Henry Ball, did unlawfully and feloniously attempt to feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill, and murder, against the peace and dignity of the state." The defendant's demurrer and motion to quash the indictment raise the question whether the indictment is bad for omitting to aver in express terms that the acts done in the attempt to kill were done with intent to murder. We grant, as claimed by counsel for the defendant, that to constitute an attempt there must be an intent to commit the act, and some act done towards its consummation of such a nature as to constitute the attempt to commit the offense. Clark's Case, 6Grat. 675, and Uhl's Case, Id. 706; 1 McClain, Cr. Law, § 222. The better course is to charge both the intent and the overt act, for both must coexist. 1 McClain, Cr. Law, § 228. But the authority last cited at the same time distinctly says: "The allegation of the attempt implies the intent to do the act attempted. In fact, the allegation of attempt implies both the intent and an actual offer to consummate the intent, and therefore such an allegation has been held in itself sufficient." It is a principle of pleading that whatever is included in or necessarily implied from an express allegation need not be otherwise averred. "When we say that a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in doing it." 1 Bish. Cr. Law, § 729. It was held in Scott v. People, 141 Ill. 204, 30 N. E. 329, that where the statute uses the word "intent" it is necessary to charge it, but otherwise where the statute uses the word "attempt, " only, as ours does. The indictment uses the word of the statute. That case held good an indictment charging merely an attempt, and not, an...