State v. Schaefer

• Decision Date: 15 February 1907
• Citation: 88 P. 792,35 Mont. 217
• Parties: STATE v. SCHAEFER.
• Court: Montana Supreme Court

88 P. 792

35 Mont. 217

STATE v. SCHAEFER.

Supreme Court of Montana

February 15, 1907

Appeal from District Court, Deer Lodge County; Geo. B. Winston Judge.

Joseph Schaefer was convicted of assault in the first degree, and appeals. Reversed and remanded.

John W James and Rodgers & Rodgers, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for the State.

SMITH J.

The defendant in this case was convicted of the crime of assault in the first degree, his prosecution being based upon an information which reads, in part, as follows: "The said Joseph Schaefer on or about the 9th day of January, 1906, *** at the county of Deer Lodge and state of Montana did then and there willfully, unlawfully and feloniously with a loaded firearm, to wit, a revolver, *** then and there assault one Frank Yamer, with intent in (him), the said defendant, to then and there unlawfully, willfully and feloniously kill the said Yamer." From the judgment of conviction and an order overruling his motion for a new trial, the defendant has appealed to this court.

The first specification of error relied upon by the defendant is that the court erred in giving to the jury, of its own motion, instruction No. 5, as follows: "Intent. In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence. The intent or intention is manifested by the circumstances connected with the offense and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity. And under the laws of the state, when an unlawful act is shown to have been deliberately committed for the purpose of injuring another, it is presumed to have been committed with a malicious and guilty intent. The law also presumes that a person intends the ordinary consequences of any voluntary act committed by him. The latter presumption, however, is termed a disputable presumption, and may be controverted by other evidence." It is contended that "neither of these presumptions of law embodied in this instruction are applicable to a case of assault with a specific intent to kill, nor to any case where the specific intent with which the act is done is the very gist of the offense; that, had the acts of the appellant resulted in the death of Frank Yamer, and had the appellant been charged with the completed offense of murder or manslaughter, then this instruction would have correctly stated the presumption of law, but, where the act done falls short of the intent entertained by the party, and the defendant is charged with doing the act with a specific intent, then these presumptions have no application, for the question of intent becomes a question of fact for the jury to decide, upon all the evidence laid before it, without the aid of any presumption of law."

We are of opinion that this instruction did not tell the jury that the "intent to kill" might be presumed, but only that the intent was presumed to be "malicious." Article 4 of section 7 of the Penal Code is as follows "The words 'malice' and 'maliciously' import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." The instruction is a substantial copy of parts of sections 20 and 21 of the Penal Code, and sections 3265 and 3266 of the Code of Civil Procedure. Such an instruction may properly be given in a case where the charge and facts warrant, but, when a defendant is on trial for a crime involving a specific intent as the gist of the...