Territory v. Vigil

• Court: New Mexico Supreme Court
• Writing for the Court: HAMILTON, J.
• Citation: Territory v. Vigil, 8 N. M. 583, 45 P. 1117, 1896 -NMSC- 21 (N.M. 1896)
• Decision Date: 01 September 1896
• Parties: TERRITORY v. VIGIL.

45 P. 1117

8 N.M. 583, 1896 -NMSC- 021

TERRITORY v. VIGIL.

Supreme Court of New Mexico

September 1, 1896

Appeal from district court, Taos county; before Justice N. B Laughlin.

Manuel Gregorio Vigil was convicted under an indictment charging assault with intent to murder, and appeals. Reversed.

Catron & Spiess and A. L. Morrison, for appellant.

John P Victory, Sol. Gen., for the Territory.

HAMILTON J.

The defendant, Manuel Gregorio Vigil, was indicted in the district court of Taos county, at the May term, 1893, for an assault with intent to kill one Manuel Leyba. The defendant was tried and convicted under said indictment at the November term of said court, 1894, and was sentenced to two years in the penitentiary. Motions for new trial and arrest of judgment being overruled, he brings this case here by appeal.

Counsel for appellant in the court below makes an attack first upon the indictment, but at the argument of the cause he has virtually abandoned this position. The indictment is framed under the first clause of section 713 of the Compiled Laws of New Mexico, and is an indictment for an assault with intent to murder. It being an indictment for an assault with intent to murder, framed under the first clause of this section 713 it was not necessary to allege in the indictment that it was the intent to kill and murder in any of the ways mentioned in section 712, for the indictment is not an indictment for an assault with intent to maim or disfigure, etc., as mentioned in section 712, but is simply an indictment for an assault with intent to murder. We think the indictment sufficiently charges the unlawful intent to kill and murder to make it good in that respect.

The main ground of error set forth in the brief and insisted upon in the argument is based upon the action of the court below in giving and refusing instructions. It is insisted by the appellant that the court erred in giving the third, fourth seventh, and eighth instructions. The third instruction given by the court is as follows: "(3) The court further instructs the jury that all that is necessary for the territory to prove in this case, to warrant a verdict of guilty, is enough to satisfy the jury from the evidence beyond a reasonable doubt, that the defendant did, on the 25th day of November, 1892, or at some time within three years prior to the 16th day of May, 1893, within the county of Taos and territory of New Mexico, make an assault upon the person of the said Manuel Leyba with a revolver or pistol, loaded with gunpowder and leaden bullets; that the same was then and there a deadly weapon; and that such assault was made with intent to inflict upon the person of the said Manuel Leyba a bodily injury, when no considerable provocation appeared, or when the circumstances of the assault showed an abandoned and malignant heart of the defendant at the time." The serious ground of complaint urged against this instruction by the appellant is that it directs the jury that they should find the defendant guilty of an assault with intent to commit murder if they found the assault was committed with an intent simply to do bodily injury. The defendant is charged with an assault with intent to murder. In order to convict the defendant of the crime charged in the indictment, it is necessary for the territory to establish two facts, viz. the assault and the intent; and, before the jury can find the defendant guilty, they must find that the defendant committed the assault, and that he did so with the intent to murder, as charged in the indictment. "It is the intent unlawfully and maliciously to kill the person assaulted which constitutes the crime of assault with intent to murder." Washington v. State, 53 Ala. 29; Morgan v. State, 33 Ala. 413. "In a prosecution for an assault with intent to murder, the actual intention to kill must be found." Maher v. People, 10 Mich. 212; Roberts v. People, 19 Mich. 401; Jeff v. State, 37 Miss. 321; Simpson...