The opinion of the court was delivered by
Peck, J.
The respondent in this case was tried by jury upon an indictment for an assault, being armed with a dangerous weapon, a loaded pistol, upon Noyes Streeter, with intent to hill and murder. The"indictment has not been furnished us, but the above is the sub'-, stance of the description of it given in the exceptions. We understand from the exceptions that the case was tried and so treated, as an indictment under section 23, chapter 112 of Gen. Stat., p. 664. It is so treated by counsel in argument. That section is in these words : “ If any person, being armed with a dangerous w'eapon, shall assault another with intent to kill or murder, he shall be punished by [607]*607imprisonment in the state prison, for life, or for a term of years not less than five.”
Upon the evidence the jury might have found the prisoner guilty of an assault, being armed with a dangerous weapon, with an intent to murder, that is, the evidence tended to prove that offence. On the other hand, there was evidence tending to show that the offence was only an assault, being armed with a dangerous weapon, with iuteut to kill. The jury found the respondent guilty of the latter only.
The court charged the jury correctly-, and as requested, as to what was necessary for them to find in order to find a verdict against respondent for the offence with intent to murder. And no question is made as to the correctness of the charge as to what facts must be found in order to warrant a verdict for an assault, being armed with a dangerous weapon, with intent to kill, provided the respondent could legally be convicted of this latter offence under this indictment, without the intent to'murder being proved-. If the Vespoudent could not legally be convicted under this iudictmeut of the offence of which the jury found him guilty, then the county court erred in refusing the defendant's request on this point, and in the charge as given in reference to it. This is the only question in the case.
There is a well recognized distinction between an assault with intent to murder, and an assault with intent to kill. In the former case the proof must be such as shows that, if death had be'en caused by the assault, the assailant would have been guilty of murder ; and in the latter case the proof need only be such as that, had death ensued, the crime would have been manslaughter. In the former case the intent must be the result of malice aforethought, and in the latter, the résult of sudden passion or emotion without time for deliberation or reflection. So far as the motive gives character to the offence, the former is a crime of deeper turpitude and deserving of more severe punishment. Yet it is undoubtedly competent for the legislature to embrace both offences in one section, without discriminating in the punishment, but leaving it for the jury to find which offence is proved, and for the court "to apportion the punishment within the limits given in the statute according to the crime [608]*608proved, and the circumstances of aggravation or mitigation attending it. The difficulty we have had upon this question has arisen from the doubt íd our minds, whether the legislature intended to entrust so extensive a discretion with the court. If this section was aimed simply at the crime of an assault with intent to kill or murder, we should say that the only offence, intended by it to be embraced was an assault to murder ; because section 18 of the same chapter prescribes the punishment for an assault with intent to kill, and by that section the punishment is less severe than that in this section in question. But this section 23 has. in it an additional element, that of making the assault, being armed with a dangerous weapon ; and the history of legislation in England and in this country, shows that assaults of this character are usually punished more severely. The* being armed with a dangerous weapon is regarded as aggravating the crime. An illustration of this is found in section 24 and section 25 of this chapter of the General Statutes. Section 24 provides that an assault, being armed with a dangerous weapon, with intent to rob, shall be punished by imprisonment in the state prison not more than ten nor less than three years; while section 25 provides that if any person not being armed with a dangerous weapon, shall assault another with force and violence with intent to steal or. rob, he shall be punished by imprisonment in the state prison not more than seven, nor less than two years. We can readily see, therefore, that the legislature may have considered the punishment provided in section 18, for an assault with intent to kill, was not sufficient for such assault when made “ being armed ivith a dangerous weapon” and that they intended to provide for this more aggravated offence by inserting it in this section 23, with an assault with the like aggravation of being thus armed, with intent to murder. There is rio incougruity in embracing the two in one section in the alternative. Under this section each offence might be charged in a separate count in the .same indictment. Nor is there any legal objection to charging both -offences in the conjunctive in the same count, in a case like this, where if the higher offence is charged it merges the less offence. The intent to murder includes the intent to kill, and if the former is proved it merges .the latter, and if the former is not, and the latter is proved, [609]*609there may be a conviction of the lower offence, upon the same prin ciple that a conviction may be had for manslaughter under an indictment for murder. In looking at the language of this section, it is manifest that the words are -such as would be used if the pur-, pose was to embrace both offences as separate and distinct. The words are with intent to kill or murder. Had only one offence been intended, and that only an assault with a dangerous weapon with intent to murder, the language would have been, with intent to murder, or with intent to kill and murder.
Some light is thrown on this question of intent of the legislature, by referring to the -Revised Statutes of 1839, and the subsequent legislation on this subject. See. 17, chap. 94. Rev. Stat., provides that, “if any person being armed with'a dangerous weapon, shall assault another with intent to rob, or to murder, he shall be punished by imprisonment in the state prison not more than ten years.” Thus we see in this the legislature coupled the intent to rob, with the intent to murder, in the alternative, in the same section ; imposing the same punishment on each. It will be noticed the word kill is not in that section. In 1850, (Comp. Stat. 93, § 19,) it was enacted that, “ if any person being armed with a dangerous weapon, shall assault another with intent to murder, he shall be punished by imprisonment in the state prison for life, or for a term of years not less than five.” This is precisely like section 23 in the General Statutes now under consideration, except in this section 23, are the words, with intent to kill or murder, in place of the words, with intent to murder, in the Compiled Statutes. The simple question is whether this change in the language is to be regarded as accidental and as not designed to change the construction, or whether on the contrary, it is to be regarded as incorporating into this section an additional offence, that of an aggravated assault with a dangerous weapon with an intent to kill, although the intent falls short of an intent to murder. We think the latter is the clear import of the language, and that it must be deemed to have been so intended.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Peck, J.
The respondent in this case was tried by jury upon an indictment for an assault, being armed with a dangerous weapon, a loaded pistol, upon Noyes Streeter, with intent to hill and murder. The"indictment has not been furnished us, but the above is the sub'-, stance of the description of it given in the exceptions. We understand from the exceptions that the case was tried and so treated, as an indictment under section 23, chapter 112 of Gen. Stat., p. 664. It is so treated by counsel in argument. That section is in these words : “ If any person, being armed with a dangerous w'eapon, shall assault another with intent to kill or murder, he shall be punished by [607]*607imprisonment in the state prison, for life, or for a term of years not less than five.”
Upon the evidence the jury might have found the prisoner guilty of an assault, being armed with a dangerous weapon, with an intent to murder, that is, the evidence tended to prove that offence. On the other hand, there was evidence tending to show that the offence was only an assault, being armed with a dangerous weapon, with iuteut to kill. The jury found the respondent guilty of the latter only.
The court charged the jury correctly-, and as requested, as to what was necessary for them to find in order to find a verdict against respondent for the offence with intent to murder. And no question is made as to the correctness of the charge as to what facts must be found in order to warrant a verdict for an assault, being armed with a dangerous weapon, with intent to kill, provided the respondent could legally be convicted of this latter offence under this indictment, without the intent to'murder being proved-. If the Vespoudent could not legally be convicted under this iudictmeut of the offence of which the jury found him guilty, then the county court erred in refusing the defendant's request on this point, and in the charge as given in reference to it. This is the only question in the case.
There is a well recognized distinction between an assault with intent to murder, and an assault with intent to kill. In the former case the proof must be such as shows that, if death had be'en caused by the assault, the assailant would have been guilty of murder ; and in the latter case the proof need only be such as that, had death ensued, the crime would have been manslaughter. In the former case the intent must be the result of malice aforethought, and in the latter, the résult of sudden passion or emotion without time for deliberation or reflection. So far as the motive gives character to the offence, the former is a crime of deeper turpitude and deserving of more severe punishment. Yet it is undoubtedly competent for the legislature to embrace both offences in one section, without discriminating in the punishment, but leaving it for the jury to find which offence is proved, and for the court "to apportion the punishment within the limits given in the statute according to the crime [608]*608proved, and the circumstances of aggravation or mitigation attending it. The difficulty we have had upon this question has arisen from the doubt íd our minds, whether the legislature intended to entrust so extensive a discretion with the court. If this section was aimed simply at the crime of an assault with intent to kill or murder, we should say that the only offence, intended by it to be embraced was an assault to murder ; because section 18 of the same chapter prescribes the punishment for an assault with intent to kill, and by that section the punishment is less severe than that in this section in question. But this section 23 has. in it an additional element, that of making the assault, being armed with a dangerous weapon ; and the history of legislation in England and in this country, shows that assaults of this character are usually punished more severely. The* being armed with a dangerous weapon is regarded as aggravating the crime. An illustration of this is found in section 24 and section 25 of this chapter of the General Statutes. Section 24 provides that an assault, being armed with a dangerous weapon, with intent to rob, shall be punished by imprisonment in the state prison not more than ten nor less than three years; while section 25 provides that if any person not being armed with a dangerous weapon, shall assault another with force and violence with intent to steal or. rob, he shall be punished by imprisonment in the state prison not more than seven, nor less than two years. We can readily see, therefore, that the legislature may have considered the punishment provided in section 18, for an assault with intent to kill, was not sufficient for such assault when made “ being armed ivith a dangerous weapon” and that they intended to provide for this more aggravated offence by inserting it in this section 23, with an assault with the like aggravation of being thus armed, with intent to murder. There is rio incougruity in embracing the two in one section in the alternative. Under this section each offence might be charged in a separate count in the .same indictment. Nor is there any legal objection to charging both -offences in the conjunctive in the same count, in a case like this, where if the higher offence is charged it merges the less offence. The intent to murder includes the intent to kill, and if the former is proved it merges .the latter, and if the former is not, and the latter is proved, [609]*609there may be a conviction of the lower offence, upon the same prin ciple that a conviction may be had for manslaughter under an indictment for murder. In looking at the language of this section, it is manifest that the words are -such as would be used if the pur-, pose was to embrace both offences as separate and distinct. The words are with intent to kill or murder. Had only one offence been intended, and that only an assault with a dangerous weapon with intent to murder, the language would have been, with intent to murder, or with intent to kill and murder.
Some light is thrown on this question of intent of the legislature, by referring to the -Revised Statutes of 1839, and the subsequent legislation on this subject. See. 17, chap. 94. Rev. Stat., provides that, “if any person being armed with'a dangerous weapon, shall assault another with intent to rob, or to murder, he shall be punished by imprisonment in the state prison not more than ten years.” Thus we see in this the legislature coupled the intent to rob, with the intent to murder, in the alternative, in the same section ; imposing the same punishment on each. It will be noticed the word kill is not in that section. In 1850, (Comp. Stat. 93, § 19,) it was enacted that, “ if any person being armed with a dangerous weapon, shall assault another with intent to murder, he shall be punished by imprisonment in the state prison for life, or for a term of years not less than five.” This is precisely like section 23 in the General Statutes now under consideration, except in this section 23, are the words, with intent to kill or murder, in place of the words, with intent to murder, in the Compiled Statutes. The simple question is whether this change in the language is to be regarded as accidental and as not designed to change the construction, or whether on the contrary, it is to be regarded as incorporating into this section an additional offence, that of an aggravated assault with a dangerous weapon with an intent to kill, although the intent falls short of an intent to murder. We think the latter is the clear import of the language, and that it must be deemed to have been so intended. It is true that where laws are collected, embodied and enacted, made up mainly of existing statutes, slight changes in phraseology not clearly changing the sense, will not be construed as an intention to change the existing [610]*610law. But section 19 of Comp. Stat. referred to, is clear and explicit to define the single offence of an assault with a dangerous weapon with intent to commit murder ; and if is impossible to account for this change in the language upon any other ground than that of an intention to incorporate into that section the offence for which the respondent lias been convicted.
It is urged against this construction that the effect is, or may be, the infliction of a greater punishment for an assault with a dangerous weapon with intent to kill, than for manslaughter, had the killing been accomplished. So far as the punishment for manslaughter by imprisonment is concerned, the maximum punishment is the same, and the minimum two years less under this section than for manslaughter under section 15. But it is true that in manslaughter there is an alternative punishment by fine not exceeding $1000. But it is to be considered that under this section in question the crime involves the turpitude of an actual intent to kill; while one may be convicted of manslaughter without any such intent, or even without any intent to injure, he may be guilty of manslaughter merely by reason of gross negligence or carelessness. Therefore it is not unreasonable that a milder punishment should be permitted in manslaughter, than the lowest limit for the offence of an assault with a dangerous weapon with intent to kill. Section 18 prescribes the punishment for an assault with intent to kill, and we think the word Mil was introduced into this section 23 for the purpose of imposing a more severe punishment, if the assault with such intent was with a dangerous weapon.
Judgment that there is no error in the proceedings of the county court, and that the respondent take nothing by his exceptions.