People v. Mize

Paterson, J. The court instructed the jury, among other things, as follows: “ Gentlemen of the. jury, these defendants are charged before you by this information with making an assault upon Henry Coffey, with intent to murder the said Coffey. They cannot be convicted of an assault to commit murder unless the evidence shows, beyond a reasonable doubt, that had the prosecuting witness, Henry Coffey, been killed, defendants-would have been guilty of murder. If the testimony shows that had Henry Coffey been killed, one of the defendants would have been guilty of murder, then that one should be convicted. If there was an unlawful assault on Henry Coffey, and no intention to commit murder, the defendant making such assault may be convicted of a simple assault.”

[43]We think that this instruction was erroneous. “ To constitute murder, the guilty person, need not intend to take life; but- to constitute an attempt to murder, he must, so intend.” (1 Bishop’s Grim. Law, sec. 730.) “The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.”- (2 Bishop’s Grim. Law, sec. 741.)

It is claimed by the attorney-general that, inasmuch as the court, in subsequent instructions, carefully instructed the jury that to constitute the offense charged in the information it was necessary to prove the intent to kill beyond a reasonable doubt, and that it was incumbent upon the prosecution to prove such intent, the jury could not have been misled by the instruction which we have quoted above. In State v. Evans, 39 La. Ann. 912, which was a case of assault with intent to murder, the court.charged the jury as follows: “Where the evidence shows that it would have been murder if death had ensued, that in itself will be sufficient ground for the jury to infer the existence of the intention to murder.” In another part of its charge, the court, at the request of the defendant, instructed the jury that “the jury must be satisfied that the prisoner had a positive intention to commit murder.” It was. claimed on appeal that the subsequent charge cured the vice of the first charge quoted, but the court well said: "The addition of these words to the original given did not, as. contended, cure the defect or vice therein. Its force was. left untouched. Its meaning was unchanged and unimpaired. Together they would in effect amount to this: ‘The jury must be satisfied that the prisoner had a posir. tive intention to commit murder; but if the, evidence shows that it would have been murder if death had ensued, that in itself will be sufficient ground for the jury to infer the existence of the intention to murder/ ”