Wright v. State, (No. 6950.)

• Decision Date: 13 June 1929
• Docket Number: (No. 6950.)
• Citation: 148 S.E. 731,168 Ga. 690
• Parties: WRIGHT. v. STATE.
• Court: Georgia Supreme Court

168 Ga. 690

148 S.E. 731

WRIGHT.

v.STATE.

(No. 6950.)

Supreme Court of Georgia.

June 13, 1929.

(Syllabus by the Court.)

Atkinson, J., and Russell, C. J., dissenting in part.

Certified Question from Court of Appeals.

Fred Wright was indicted for assault with intent to murder, and he brings error. On certified question from Court of Appeals. Questions answered.

The Court of Appeals requested instructions upon the following question, a determination of which is necessary for decision of this case:

"The indictment charged Fred Wright 'with the offense of assault with intent to murder, for that the said accused, in the county aforesaid [Baldwin county, Georgia], on the 11th day of May, 1928, with force and arms, did unlawfully, wrongfully, feloniously, wantonly, and with reckless disregard of human life, operate a motor vehicle, to wit, a Buick automobile, on and over the public road in said county leading from Milledgeville, Georgia, to Sparta, Georgia, and near the store of Guy Smith, while under the influence of intoxicating liquors and drugs and at a rate of speed greater than 40 miles per hour, so that, as a result of said unlawful act and said wanton, reckless, and unlawful operation of said vehicle, the same was driven on and into a certain Ford touring car on said highway, then and there occupied by Mrs. A. C. Teasley, inflicting upon her serious bodily wounds, and on and upon Chas. L. Ware, inflicting upon him serious and painful wounds, contrary to the laws of said state, the good order, peace, and dignity thereof.' Was the indictment subject to be quashed on demurrer for the reason that it failed to charge that the alleged assault was made with the intent to kill either or both of the persons alleged to have been assaulted, or for the reason that it failed to charge that the motor vehicle alleged to have been driven by the accused was a weapon or instrumentality likely to produce death?"

Allen & Pottle, of Milledgeville, for plaintiff in error.

Jos. B. Duke, Sol. Gen., of Eatonton, for the State.

HINES, J. [1] 1. The defendant was charged with the offense of an assault with intent to murder, the substance of which is set out in the question propounded to this court by the Court of Appeals, preceding this opinion. Was the indictment subject to demurrer upon the ground that it failed to charge that the alleged assault was made with intent to kill, or for the reason that it failed to charge that the motor vehicle alleged to have been driven by the accused was a weapon or instrumentality likely to produce death? "An assault with intent to murder, by using any weapon likely to produce death, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than ten years." Pen. Code 1910, § 97. A specific intent to kill is an essential ingredient of the offense of assault with intent to murder. Patterson v. State, 85 Ga. 131, 11 S. E. 620, 21 Am. St. Rep. 152; Gilbert v. State, 90 Ga. 691, 16 S. E. 652; Lanier v. State, 106 Ga. 368, 32 S. E. 335; Kimball v. State, 112 Ga. 541(2), 37 S. E. 886; Napper v. State, 123 Ga. 571, 573, 51 S. E. 592. The specific intent to kill being an essential element of the offense of assault with intent to commit murder, both under the section of the Code defining this offense and under the decisions of this court, the indictment should allege the specific intent to kill. It is a well-recognized rule that every indictment must charge every essential element of an offense. But it may be said that the defendant was operating the automobile unlawfully, being under the influence of intoxicating liquors and drugs, and operating it at a speed in excess of 'that permitted by law, and that in these circumstances the specific intent to kill will be presumed.

There Is some ground for this contention, under the decision in Collier v. State, 39 Ga. 31, 99 Am. Dec. 449; but that case has not been followed, and has been practically overruled by the subsequent decisions of this court. When an "involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, * * • the offense shall be deemed and adjudged ti> be murder." Pen. Code 1910, § 67. But where death does not follow upon the commission of an unlawful act, it will not be presumed that it was the intent, of the accused to kill. In Patterson v. State, supra, this court held that, "on a trial for assault with intent to murder, it was error to charge the jury that if the assault was made with a weapon likely in its nature to produce death, the law presumes that it was made with intent to murder." In the opinion it was said: "Where death takes place from unlawful violence, malice includes an intention to kill. * * * But where death does not take place, there may be malice in giving the wound, but utter absence of intention to kill. The law will impute the intention to kill where there is a killing, but not where there is none." To the same effect are the decisions in Gallery v. State, 92 Ga. 463, 17 S. E. 863; Stovall v. State, 106 Ga. 443, 447, 32 S. E. 586; Harris v. State, 120 Ga. 167, 47 S. E. 520; and Napper v. State, supra. It follows that this indictment, as one charging the offense of an assault with intent to murder, was bad for lack of an allegation that the accused intended to kill, and for this reason the accused could not be put upon trial for the offense charged, in the absence of such allegation.

2. Was the indictment subject to be quashed because it failed to charge that the automobile was a weapon or instrumentality likely to produce death? Section 97, Pen. Code 1910, is as follows: "An assault with intent to murder, by using any weapon likely to produce death, shall be punished by im-prisonment and labor in the penitentiary for not less than two years nor longer than ten years." As an original proposition it can be plausibly urged that under this section the offense of an assault with intent to murder can only be committed by the use of a weapon likely to produce death, and that in consequence the use of a weapon likely to produce death is an essential ingredient of the offense which must be alleged in an indictment therefor. This contention is more plausible and reasonable when it is remembered that by the common law an assault with intent to commit murder was not a felony, but was regarded as a serious or aggravated misdemeanor. In view of this fact it can be urged, with some show of reason, that when the Legislature made an assault with intent to murder by the use of a weapon likely to produce death a felony, it intended to make the use of such weapon an essential element of the offense, which must be alleged and proved in any case in which one is indicted under this section of the Penal Code.

But this court has put a different construction upon this section. In Monday v. State, 32 Ga. 672, 79 Am. Dec..314, the defendant was charged with the offense of an assault with intent to murder. The indictment did not allege that the assault was made with a weapon likely to produce death. It did not set forth how or in what manner the assault was inflicted, or with what instrumentality it was made. The evidence disclosed that the assault was perpetrated by the choking of the person assaulted by the defendant. The defendant was convicted. The defendant moved in arrest of judgment, because: (a) It is apparent, upon the face of the indictment, that no deadly weapon was used by the prisoner, (b) The indictment does not allege that the assault was committed with any instrument or weapons, or hands or fists, or anything else, with which such an offense can be committed, the Indictment simply stating that the prisoner committed an assault with intent to murder, without stating how or in what manner, or by the use or employment of what means, or of any means. The court overruled the motion in arrest. The defendant assigned error on that ruling, and on the overruling of a motion for new trial upon the ground, among others, that the court erred in charging the jury that while an assault with intent to murder is usually manifested by the use of some deadly weapon, "yet the offense of an assault with intent to murder might be committed without a weapon likely to produce death." In his motion in arrest of judgment, the defendant made the point that the indictment was fatally defective, in that it failed to allege that the assault was made with a weapon likely to produce death. In his motion for new trial he excepted to the charge to the effect that an assault with intent to commit murder could be committed without the use of such weapon. This court overruled this...