State v. Thomas

• Decision Date: 28 November 1910
• Docket Number: 18,391
• Citation: 53 So. 868,127 La. 576
• Court: Louisiana Supreme Court
• Parties: STATE v. THOMAS

53 So. 868

127 La. 576

STATE v. THOMAS

No. 18,391

Supreme Court of Louisiana

November 28, 1910

Rehearing Denied January 3, 1911.

Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.

Spencer Thomas was convicted under an indictment charging him with willfully and with malice aforethought shooting at another with intent to commit murder, and he appeals. Affirmed.

R. C. &amp S. Reid, for appellant.

Walter Guion, Atty. Gen., and W. H. McClendon, Dist. Atty. (R. G Pleasant, of counsel), for the State.

OPINION

PROVOSTY J.

The accused quarreled with one Washington in front of the latter's house, walked about 200 yards away, and procured a gun, and returned, and, without excuse, fired at Washington, wounding both him and one Alma Meyers who was on the gallery of the house back of him. The indictment reads that the defendant:

"Willfully, feloniously, and of his malice aforethought did shoot Alma Meyers with a dangerous weapon with intent to commit murder, contrary to the form of the statute," etc.

The statute is section 791, Rev. St., as amended by Act No. 43 of 1890, and reads:

"Whoever shall shoot, stab, cut, strike, or thrust any person with a dangerous weapon with intent to commit murder shall," etc.

The main reliance of defendant is upon three bills covering the difference between his counsel and the judge as to whether there can be a conviction under said statute in a case where the shooting was at another person and only took effect accidently upon the person named in the indictment.

We agree with the learned trial judge that in the instant case the terms of the statute are completely satisfied, and the allegations of the indictment fully proved, if there is the shooting of any person, -- no matter of what person, -- and the shooting is done with a dangerous weapon and with intent to commit murder; in other words, that there is nothing in the terms of the statute requiring that the person who was shot should have been the person intended in fact to be murdered, or who was shot at.

It will be observed that the indictment does not charge that the intent to murder was directed towards Alma Meyers; and that it did not need so to charge. Whether its so charging would have made any difference, or, in other words, whether its so charging could not have been treated as mere surplusage, is a question that need not be considered. In Regina v. Ryan, 2 Macl. & R. 213, where G. took poison which the prisoner had intended for C., and the indictment charged specifically that the prisoner had intended to poison G., Parke, B., doubted whether the verdict could stand, and directed another indictment to be brought charging generally that the prisoner did the act "with intent to commit murder"; without specifying against whom the intent was directed. He said that he doubted the correctness of a previous decision (Rex v. Lewis, 6 C. & P. 161), where, upon similar facts, the verdict had been maintained, although the statute then required that the intent should have been to murder "such person" -- i. e., the person named in the indictment. He added that the language of the statute had been altered in order to provide for just such a case as the one in question; so that it was now sufficient to allege generally that the prisoner did the act "with intent to commit murder," without naming the person against whom the intent was directed.

Under the caption "Assault taking effect on one not meant," Bishop, New Crim. L. vol. 2, § 741, par. 4, has the following:

"Should the assault terminate in a battery of a person not meant, Is the offense of assault with intent to kill or murder committed? In legal reason, and in the absence of special terms in the statute, it is; because in such a case both the statutory act and the statutory intent have transpired -- the legislative words are covered, and the wrong done is completely within their spirit. The indictment might even charge that the assault was made on one named, mistaken by the accused for another one named with intent to take the latter's life; for here the thing done would be apparently adapted to accomplish the death meant, bringing the case within the general rule of the law of attempt."

From Bacon's Maxims, rule 15, we take the following:

"In criminal causes, general malice, or intent, is enough, provided it is combined with a fact of as high a degree. * * * All crimes have their conception in a corrupt intent, and have their consummation and issuing in some particular fact, which, though it be not the fact at which the intention of the malefactor leveled, yet the law giveth him no advantage of the error, if another particular ensue of as high a nature." Bacon's Maxims, rule 15. See 8 A. & E. E. 288.

In support of his contention, the learned counsel for defendant cites the cases of State v. Evans, 39 La.Ann. 912, 3 So. 63; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; State v. Mulhall, 199 Mo. 202, 97 S.W. 583, 7 L.R.A. (N.S.) 630.

The doctrine of the Evans Case, here cited, is simply that where a specific intent is required by the statute, and a specific intent is, accordingly, charged in the indictment, this specific intent must be proved. In other words, that in such a case a general intent to commit a crime will not suffice, but that the specific intent must be proved.

There can be no doubt that where a specific intent is made by the statute an element of the crime, this specific intent must be proved, and that in such a case proof of general malice or criminal intent will not suffice. Thus, in assault with intent to kill, proof of an intent to rape will not suffice; and, vice versa, in assault with intent to rape, proof of intent to kill will not answer. But in a case like the present the specific intent required by the statute is proved; the shooting is done with intent to kill. True, the intent was to kill a different person; but, we repeat, the statute does not require that the intent must be to kill the person actually shot; it merely requires that there must be an intent to kill.

In the other case cited by defendant, supra -- that of Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8 -- the prisoner shot at McClure and hit one Heartstings. He was charged with having made an assault upon Heartstings "with intent him, the said Heartstings, to kill and murder." The court held that the specific intent to kill Heartstings had to be proved. In support of that view the court cited Rex v. Holt, 34 Eng. C.L. 522, supra; 2 Starkie on Evidence, 572; State v. Neal, 37 Me. 468; State v. Jefferson, 3 Har. (Del.) 571; Ogletree v. State, 28 Ala. 693.

In Rex v. Holt, as already pointed out, supra, the statute required that the intent should have been to murder "such person"; i. e., the person named in the indictment. This distinguishes that case from ours, and, possibly, also from this Lacefield Case, since in this Lacefield Case it might perhaps have been possible to treat the allegation of the intent having been to murder the person named in the indictment as surplusage.

Referring to Starkie on Ev. 572, we find there a note announcing broadly, as in this Lacefield Case, that "Where one aiming at A. misses him and wounds B., he cannot be convicted of assault with intent to kill B." Whether this note is by Starkie is not certain. No decision, or other authority, is cited in support of it.

In Ogletree v. State, 28 Ala. 693, the defendant had threatened to kill one Mitchell, and was about to assault Mitchell with a stick when one Tiller intervened to prevent him from doing so, and defendant turned upon Tiller and struck him with the stick, and the indictment was for assaulting Tiller with intent to kill. Proof of the threat made against Mitchell was objected to, on the ground that the threat had been made against a different person. The trial court admitted the evidence on the principle that the general intent which the defendant entertained at the moment to commit a crime could be proved in support of the alleged specific intent to kill Tiller. On appeal the ruling was reversed, the court holding that the evidence had to be restricted to the specific intent to kill Tiller. The case is authority only to the extent stated in the syllabus, that:

"To constitute an assault with intent to murder, it is not sufficient to prove a general felonious intent, or any other than the particular intent alleged in the indictment."

The case is not analogous with ours, or with the Lacefield Case, supra, in that it was not the case of a blow aimed at one person, and falling accidently upon another.

So in State v. Neal, 37 Me. 468, there was not presented a case of injury falling upon a different person from the one intended. The question there was simply as to the sufficiency of the evidence to show malice aforethought. The case is authority for no other proposition than that malice aforethought must be proved before a defendant can be convicted with assaulting with intent to murder. What malice there was in that case was directed against the person injured.

The other, and last, decision cited in the Lacefield Case, namely, State v. Jefferson, 3 Har. (Del.) 571, we are not able to refer to, the report not being in our library.

The case of State v. Mulhall, 199 Mo. 202, 97 S.W. 583, 7 L.R.A. (N.S.) 630, cited by defendant, we do not consider to be analogous with ours in its facts. The statute in that case read:

"Every person who shall, on purpose and of malice aforethought, shoot at * * * another * * * with intent to kill * * * such person, or in the attempt to," etc., "shall," etc.

The defendant had not "shot at" the person he wounded, but had "shot at" another person. It will be observed that the statute required as an...