Munday v. State

254 So. 2d 33

• Court: District Court of Appeal of Florida
• Decided: November 2, 1971
• Docket: 71-441
• Status: Published

Opinion

254 So.2d 33 (1971)

Michael MUNDAY, Appellant,
v.
The STATE of Florida, Appellee.

No. 71-441.

District Court of Appeal of Florida, Third District.

November 2, 1971.

Fred A. Jones, Jr., Miami, for appellant.

Robert L. Shevin, Atty. Gen., and William L. Rogers, Legal Intern, for appellee.

Before PEARSON, CHARLES CARROLL and HENDRY, JJ.

PEARSON, Judge.

The appellant was found guilty by a jury of an aggravated assault upon Donald E. Hunt by running an automobile against Hunt. He was adjudicated guilty by the court and sentenced to eighteen months in prison.

On this appeal the appellant who was the defendant urges that the evidence was insufficient to show an intent to assault Hunt. The crime of aggravated assault requires a general intent. McCullers v. State, Fla.App. 1968, 206 So.2d 30.

The testimony of the complaining witness, who alone testified that he was assaulted, was that he was attempting to keep the appellant from moving the car. The car was partially blocked in by the complaining witness. The evidence as a whole is as susceptible of the conclusion that appellant was trying to extricate the car, as it is of an intent to assault the witness. An assault is committed by an unlawful offer to injure another with apparent present ability to effectuate the offer under circumstances creating a fear of imminent peril. Motley v. State, 155 Fla. 545, 20 So.2d 798 (Fla. 1945); Albright v. State, Fla.App. 1968, 214 So.2d 887; Bass v. State, Fla.App. 1970, 232 So.2d 25.

The judgment is reversed with directions to discharge the appellant.

Reversed.