Merrick, C. J.
It is charged, in the indictment in this case, that the accused, on the second day of December, 1855, at &c., “ upon the body of one Adam Zammert, a free white person, in the peace of the State, then and there [626]*626being, with a certain dangerous weapon called a shot gun, then and there1loaded with gun powder and divers leaden shot, which the said John Munco,. then and there, in both his hands, had and held at and against the said Adam Zammert, feloneously, wilfully and of his malice aforethought, did shoot and' discharge with intent, thereby wilfully and of his malice aforethought, the said' Adam Zammert, to kill and'murder, contrary, &c.”
The accused having been found guilty under the indictment, moved an arrest of judgment, on the ground' that the indictment does not charge the accused' with any crime or offence known to the law. The motion in arrest of judgment was overruled, and'the accused was sentenced to fouryeias imprisonment-int the penitentiary.
His counsel urge the ground assumed in the motion in arrest of judgment, as a cause of reversal of'the judgment here.
Although the indictment does not follow the language of the Statute, yet we1 think that it embraces, in tho act charged, two of the offences provided for by the ninth Section of the Act 14th March, 1855. (p..l31,) viz: It charges the-accused,
1st. With an assault by wilfully shooting at Zammert.
2d. With an assault with- an intent, in that manner, to commit murder.
It is true the word “ assault”’ is not used in the indictment, hut the shooting of a gun at and against another with intent to commit murder, is certainly an assault. The offence prohibited' by the Statute has, therefore, been substantially alleged.
The motion in arrest of judgment was, on the ground stated¡ properly’ overruled.
As we consider the lower court had a sufficient indictment before it, we will, consider the regularity of the proceedings on the trial, and notice the bills of.’ exception taken by the appellant.
I. The State offered witnesses on the trial to prove that A. Zammert wassWuelc with tho shot, and to prove tire number and extent of his wounds, the testimony was received, notwithstanding the defendant objected, that “there, was no allegation in the indictment that Zammert was shot or wounded.”
Doubtless before tho passage of the Act of 14th March, 1855, entitled an-Act to regulate the mode of procedure in criminal prosecutions, which has been borrowed from tho recent English laws, the testimony might have been admissible to show the manner in which the gun was loaded and the intent of. the accused.
However that may be, wo think it perfectly clear that the testimony was admissible under the ninth section of said Act. It is in these words:
“Be it enacted, &c., That if, upon tho trial of any person for any crime or' misdemeanor, it shall appear that the facts given in evidence amount in law to some other offence, ho shall not, by reason thereof, be entitled to be acquitted of the offence charged, and no person tried for such crime or misdemeanor shall bo liable to bo afterwards prosecuted for such other offence on the same facts, unless the court before which such trial may he had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for tho offence shown to have boon committed,, in which case such person may be dealt with, in all respects,, as if he had not been put upon his trial.”
[627]*627Before considering this Section, wo will premise, by adverting to a distinct, ion between the common law (which was the same in both criminal and civil proceedings,) and our own in civil proceedings.
Under our law, in civil cases, if the testimony is once received, we pass upon it whether it supports the allegations of the party offering it or not. At common law, unless the testimony when received corresponds with the allegation in the declaration or indictment, there is a variance and the party fails, notwithstanding the jury has heard evidence proving a demand or a crime though different from that alleged.
The usual mode, therefore, is to suffer the testimony to go to the jury, relying upon' the instructions of the Judge to the jury, as to what constitutes a •variance. 1 Greanleaf, p. 65; 1 Ohitty’s Pleadings, pp. 308, 304; 3 Starkie Ev., 1526.
As, at common law, all misdemeanors merge in the felony, a quasi variance takes place, when under an indictment for a misdemeanor the facts establish the offence charged, but because they also show an aggravation of that offence which, by its aggravation, is made a felony, the misdemeanor is merged in the felony, and the offence charged is considered as not proved. 1 Bishop Orim. Law, No. 543.
Mr. Wheaton remarks, that “ It has been frequently held, in this country, that where, on an indictment for assault, an attempt or conspiracy with an intent to commit a felony, it appeared that the felony was actually consummated, ■it was the duty of the court to charge the jury chat the misdemeanor had merged and the accused must be acquitted.”
“ It used to be supposed from the casual remarks of old text writers, that the common law rule was, that whenever a lesser offence met a greater, the former sunk into the latter: and hence, in a large class of prosecutions, the defendant would succeed in altogether escaping conviction by a-subtle fiction Laving no origin either in common sense or necessity.”
“ Conceiving, however, (Mr. Wheaton proceeds,) the principle to be too ■deeply settled to be overruled, the courts of Maine, Massachusetts, New York ■and Pennsylvania, as has been seen, have held, that where a felony was proved, 'the defendant was to be acquitted of the constituent misdemeanor, and though the motion was sturdily resisted elsewhere, it has taken deep and general ■root.” . Wheaton Com. Law, 2d Ed., 107-8.
Now an examination of the statute of 1855, relative to the mode of criminal procedure, will show that it was intended to swoop from the criminal law, ■among others, this class of technicalities, and place the administration of criminal justice upon a more reasonable footing.
The first section of the Statute authorizes amendment of the indictment, in ■order to prevent acquittal from -certain crimes.
Sections 1, 2, 3, 4, 5 and 6, directs that the mode of framing certain indictments in a more general manner than heretofore, in order also to avoid fatal -variances which migLt otherwise arise from the proof.
Section seven, enables the jury, on an indictment charging the actual commission of an offence, to bring in a verdict charging- the accused with an attempt to commit the offence.
By the eighth section, on an indictment for robbery, the jury may find the accused guilty of an assault with intent to rob.
By the tenth section, a person indicted for embezzlement, as a clerk, &c., ¡may be found guilty of larceny, and vice versa.
[628]*628By the eleventh section, on a trial of two or more persons indicted for jointly receiving any property, any of the parlies maybe found guilty who shall be proved to have received any part of said property.
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Merrick, C. J.
It is charged, in the indictment in this case, that the accused, on the second day of December, 1855, at &c., “ upon the body of one Adam Zammert, a free white person, in the peace of the State, then and there [626]*626being, with a certain dangerous weapon called a shot gun, then and there1loaded with gun powder and divers leaden shot, which the said John Munco,. then and there, in both his hands, had and held at and against the said Adam Zammert, feloneously, wilfully and of his malice aforethought, did shoot and' discharge with intent, thereby wilfully and of his malice aforethought, the said' Adam Zammert, to kill and'murder, contrary, &c.”
The accused having been found guilty under the indictment, moved an arrest of judgment, on the ground' that the indictment does not charge the accused' with any crime or offence known to the law. The motion in arrest of judgment was overruled, and'the accused was sentenced to fouryeias imprisonment-int the penitentiary.
His counsel urge the ground assumed in the motion in arrest of judgment, as a cause of reversal of'the judgment here.
Although the indictment does not follow the language of the Statute, yet we1 think that it embraces, in tho act charged, two of the offences provided for by the ninth Section of the Act 14th March, 1855. (p..l31,) viz: It charges the-accused,
1st. With an assault by wilfully shooting at Zammert.
2d. With an assault with- an intent, in that manner, to commit murder.
It is true the word “ assault”’ is not used in the indictment, hut the shooting of a gun at and against another with intent to commit murder, is certainly an assault. The offence prohibited' by the Statute has, therefore, been substantially alleged.
The motion in arrest of judgment was, on the ground stated¡ properly’ overruled.
As we consider the lower court had a sufficient indictment before it, we will, consider the regularity of the proceedings on the trial, and notice the bills of.’ exception taken by the appellant.
I. The State offered witnesses on the trial to prove that A. Zammert wassWuelc with tho shot, and to prove tire number and extent of his wounds, the testimony was received, notwithstanding the defendant objected, that “there, was no allegation in the indictment that Zammert was shot or wounded.”
Doubtless before tho passage of the Act of 14th March, 1855, entitled an-Act to regulate the mode of procedure in criminal prosecutions, which has been borrowed from tho recent English laws, the testimony might have been admissible to show the manner in which the gun was loaded and the intent of. the accused.
However that may be, wo think it perfectly clear that the testimony was admissible under the ninth section of said Act. It is in these words:
“Be it enacted, &c., That if, upon tho trial of any person for any crime or' misdemeanor, it shall appear that the facts given in evidence amount in law to some other offence, ho shall not, by reason thereof, be entitled to be acquitted of the offence charged, and no person tried for such crime or misdemeanor shall bo liable to bo afterwards prosecuted for such other offence on the same facts, unless the court before which such trial may he had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for tho offence shown to have boon committed,, in which case such person may be dealt with, in all respects,, as if he had not been put upon his trial.”
[627]*627Before considering this Section, wo will premise, by adverting to a distinct, ion between the common law (which was the same in both criminal and civil proceedings,) and our own in civil proceedings.
Under our law, in civil cases, if the testimony is once received, we pass upon it whether it supports the allegations of the party offering it or not. At common law, unless the testimony when received corresponds with the allegation in the declaration or indictment, there is a variance and the party fails, notwithstanding the jury has heard evidence proving a demand or a crime though different from that alleged.
The usual mode, therefore, is to suffer the testimony to go to the jury, relying upon' the instructions of the Judge to the jury, as to what constitutes a •variance. 1 Greanleaf, p. 65; 1 Ohitty’s Pleadings, pp. 308, 304; 3 Starkie Ev., 1526.
As, at common law, all misdemeanors merge in the felony, a quasi variance takes place, when under an indictment for a misdemeanor the facts establish the offence charged, but because they also show an aggravation of that offence which, by its aggravation, is made a felony, the misdemeanor is merged in the felony, and the offence charged is considered as not proved. 1 Bishop Orim. Law, No. 543.
Mr. Wheaton remarks, that “ It has been frequently held, in this country, that where, on an indictment for assault, an attempt or conspiracy with an intent to commit a felony, it appeared that the felony was actually consummated, ■it was the duty of the court to charge the jury chat the misdemeanor had merged and the accused must be acquitted.”
“ It used to be supposed from the casual remarks of old text writers, that the common law rule was, that whenever a lesser offence met a greater, the former sunk into the latter: and hence, in a large class of prosecutions, the defendant would succeed in altogether escaping conviction by a-subtle fiction Laving no origin either in common sense or necessity.”
“ Conceiving, however, (Mr. Wheaton proceeds,) the principle to be too ■deeply settled to be overruled, the courts of Maine, Massachusetts, New York ■and Pennsylvania, as has been seen, have held, that where a felony was proved, 'the defendant was to be acquitted of the constituent misdemeanor, and though the motion was sturdily resisted elsewhere, it has taken deep and general ■root.” . Wheaton Com. Law, 2d Ed., 107-8.
Now an examination of the statute of 1855, relative to the mode of criminal procedure, will show that it was intended to swoop from the criminal law, ■among others, this class of technicalities, and place the administration of criminal justice upon a more reasonable footing.
The first section of the Statute authorizes amendment of the indictment, in ■order to prevent acquittal from -certain crimes.
Sections 1, 2, 3, 4, 5 and 6, directs that the mode of framing certain indictments in a more general manner than heretofore, in order also to avoid fatal -variances which migLt otherwise arise from the proof.
Section seven, enables the jury, on an indictment charging the actual commission of an offence, to bring in a verdict charging- the accused with an attempt to commit the offence.
By the eighth section, on an indictment for robbery, the jury may find the accused guilty of an assault with intent to rob.
By the tenth section, a person indicted for embezzlement, as a clerk, &c., ¡may be found guilty of larceny, and vice versa.
[628]*628By the eleventh section, on a trial of two or more persons indicted for jointly receiving any property, any of the parlies maybe found guilty who shall be proved to have received any part of said property.
It is now seen that the ninth section, in furtherance of the design and general scope of this act, provides that where the testimony shows that a person charged with one offence has committed another offence, by reason of tho proof containing aggravating or other circumstances, giving another name or complexion to the act, that he is not to be acquitted of the offence charged unless the court shall discharge the jury and direct the defendant to be indicted for that other offence. This section, therefore, remedies the evil complained of by Mr. Wheaton. It makes, in part, the converse of the rule recognized in Steadman's case, 6 Ann., 289, that “where the accusation of a crime'includes an offence of an inferior degree, the jury majr (under the proof,) 'discharge the defendant of the high crime and convict him of the less atrocious, ” and now the proof of the greater offence sustains the less.
Under the Statute in question, a person cannot now escape, because it turns out by the proof, that the offence which he has committed is more aggravated than that with which he is charged. If the proof sustains the indictment, the accused is not now to be acquitted, because the same proof would also sustain an indictment for another offence. The doctrine of variances still applies to indictments, and tho accused cannot be convicted unless the proof corresponds with the indictment, but where it does correspond, tho accused shall not escape, because the proof is in excess of the allegations, even by the aggravating circumstances, unless the Judge shall be of the opinion that the offence is so atrocious that the accused ought to be put upon his trial for the more aggravated offence.
It will therefore be seen, that if the proof offered in evidence supported the indictment, although it proved a more heinous offence, it was within the discretion of the Judge to receive it.
The proof did sustain the indictment on the well known principle that every battery includes an assault. 4 Mod. 405 ; Co. Litt., 258.
Muneo could not have shot Lammert with intent to commit murder without assaulting him with like intent.
Wo think the testimony was'properly received. The accused had no reason to complain, as a conviction upon the indictment, by the express provision of the Statute, would have been a bar to the pi’osecution for the more aggravated offence of shooting with an intent to commit murder.
• II. This brings us to-the last bill of exceptions which was taken to the charge of the Judge to the jury.
The bill of exception presents the charge of the Judge to the jury in a composed manner, but we think, notwithstanding the qualifications given by the Judge, that ho ought not to have charged “that although death did not ensue from the act, yet that the malice aforethought, was legally implied from the act as though death did ensue.” This charge is erroneous, because it implies an opinion upon the act proven, which the Judge is now prohibited from giving in criminal as well as civil cases. The jury are to judge of the intent from all of the surrounding ciroumstanses. As a general rule, men are supposed to intend the usual consequences of their acts. The man who wilfully discharges a loaded gun at another within striking distance, is presumed to intend to maim or kill. If his act of shooting is accompanied by deliberation, it is presumed that he intended to commit murder. If he happen to be armed with a [629]*629gun, and lie is set upon by armed men and he shoots in self defence, it is no offence at all, but an excusable act.
It is not necessary that it should be actually shown how the gun was loaded. This may be presumed from all the circumstances. It ought to appear that Lwmmert was within the range of the kind of gun used at the time the shooting took place, and if he were not, the offence was not committed, although the shooting was malicious.
The law of the case, or so much of the indictment as charges an assault with an intent to commit murder, was correctly embodied in the last point which the Judge charged, viz:
“ That if the jury were of the opinion that had Lammert died of the wounds inflicted by the accused, that the accused would have been guilty of manslaughter and not of murder, then the accused should he acquitted.”
But we have already observed that the indictment charges the offence of assaulting, by wilfully shooting at Adam Lammert, and if this appear, the indictment will he sustained, although it may not be proven that the assault was made with the intent to murder. C Ann. 289.
The judgment must he reversed, and a new trial awarded.
We remark, that should the accused be convicted under this indictment, he cannot be sentenced to a longer period, at hard labor, than two years.
It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be reversed, and that this cause be remanded to the lower court for a new trial, with instructions to bo governed by the instructions herein contained, and otherwise proceed according to law ; and that the opinion and decree of the court record be transmitted to the clerk of the Supreme Court at Monroe, according to the agreement of the parties on file.