State v. Mills

• Decision Date: 17 January 1908
• Citation: 22 Del. 497,69 A. 841
• Court: Court of General Sessions of Delaware
• Parties: STATE v. HARRY B. MILLS

69 A. 841

22 Del. 497

STATE v. HARRY B. MILLS

Court of General Sessions of Delaware, New Castle County

January 17, 1908

Court of General Sessions, New Castle County, January Term, 1908.

INDICTMENT FOR ASSAULT WITH INTENT TO COMMIT MURDER, being No. 15, to the November Term, 1907.

Verdict, guilty of assault.

Daniel O. Hastings, Deputy Attorney-General, for the State.

J Frank Ball for the defendant.

LORE C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

GRUBB, J., charging the jury:

Gentlemen of the jury:--This indictment charges Harry B. Mills with an assault with intent to murder John J. Fox, the prosecuting witness, who is shown by the evidence without contradiction to have been at the time of the alleged offense a police officer in the City of Wilmington.

Under this indictment you may find the accused guilty either of assault with intent to murder, or of simple assault merely or not guilty of either, according as the law and evidence may warrant your verdict.

In order to warrant you in finding the prisoner guilty in manner and form as indicted, it is incumbent upon the State to satisfy you by all the evidence in the case, beyond a reasonable doubt, not only that the alleged assault was committed by the accused, but also that it was made by him with the intent to murder the prosecuting witness, and in this county.

An assault simply is an unlawful attempt by violence to do injury to the person of another, the person making the attempt having the present ability to commit such injury. As in addition to the assault, the intent to murder is also alleged in the indictment, it is necessary for us to define what murder, within the meaning of the law, is.

To constitute the statutory offense of assault with intent to commit murder, the circumstances must be such as to show that it would have been murder if the assailant had accomplished such intent.

Murder is where a person of sound memory and discretion unlawfully kills any human being with malice aforethought either express or implied. Under the statute law of this State there are two degrees of murder, namely, first and second degrees. First degree murder is where the crime is committed with express malice aforethought, or in perpetrating or attempting to perpetrate, a crime punishable with death. The express malice which constitutes murder of the first degree is proved by the circumstances attending the act, satisfactorily evidencing a sedate, deliberate purpose and formed design to kill another, such as the deliberate selection and use of a deadly weapon, lying in wait, antecedent threats, and the like. Implied or constructive malice is an inference or conclusion of law from the facts found by the jury. Therefore murder of the second degree may be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a sedate, deliberate purpose and formed design to take life, but is shown that it was done suddenly without justification or excuse, and without provocation sufficient to reduce the crime to the grade of manslaughter.

Malice is implied by law from every deliberate, cruel act committed by one person against another, no matter how sudden such act may be, for the law considers that he who does a cruel act voluntarily, does it maliciously.

If you should find that the defendant's act was such that if Fox's death had resulted therefrom, it would have been murder either of the first or second degree, then you are still to go further and be satisfied from the evidence that the prisoner made the assault with the intent to murder him. Therefore it becomes necessary for us further to state to you how such intent to murder may be shown to your satisfaction. This intent may be shown by direct evidence of the intent, that is, by the express confession or declaration of the accused, or if there be no such direct evidence, the intent to murder may be proved by the acts or the conduct of the accused, and other circumstances, from which you may reasonably infer the intent charged. It is a principle of law that every man must be presumed to intend the natural and probable consequences of his own wilful act. So that from the use of a deadly weapon against another the jury may infer the intent to commit murder, unless the circumstances of the case satisfy them to the contrary. It is for you to say from the testimony before you, whether there is such evidence as will warrant you in inferring that the...