
    Robinson vs. Commonwealth.
    APPEAL FROM ADAIR CIRCUIT.
    1. In an indictment under the first section of the seventeenth article of the Revised Statutes, for shooting at another, (page 264,) it is not necessary to aver that the shooting was done maliciously, and it was not error in the court to refuse an instruction to the jury, that to authorize a conviction, they should believe from the evidence that it was done with malice aforethought.
    2. The indictment charged a shooting with the intent to kill and murder. The jury found the defendant guilty of shooting with the intent to kill or wound him; both of the offenses being equally penal offenses, and the charge of intent to kill and murder being the higher offense, includes that of an intent to kill or wound. (Grim. Code, Sec. 258, and Sec. 259.) The Code makes all injuries by assaulting, but degrees of the same offense, and to assault with intent to wound is a .degree of the offense of assaulting with the intent to kill. The finding of the jury was therefore good and authorized a judgment.
    3. The court can only reverse a judgment in a criminal case, for errors apparent on the record. (Crim. Code, Sec. 348.)
    The facts of the case are stated in the opinion of the court. — Rep.
    
      T/ios. E. Bramblette, for appellant—
    The counsel for the appellant asked the circuit court to modify the instruction asked for by the prosecution, to the effect that unless they believed from the evidence, that the shooting was done with malice aforethought or of premeditation, &c., and if done in the heat of passion in an affray, or under such circumstances as would have amounted to manslaughter only, if death had ensued, they should acquit the prisoner. The court refused so to modify the instruction, and exceptions were taken upon the record. After verdict against the appellant, a motion in arrest of.judgment and a new trial was made and overruled, and the appellant has brought the case to this court.
    
      1. Was the instruction erroneous, and should the court have modified it as suggested ?
    It is insisted that the instruction as given was erroneous, and for the following reasons : 1st. The instruction authorized the jury to find the defendant guilty of an offense not charged in the indictment, and not an offense of lower degree, which would be included in the offense charged. The indictment charges a malicious shooting, with the intent to kill and murder. It is specific as to the intent, and does not charge any intent to wound, but to kill and murder. The allegation of intent is material; without an intent to kill or wound, no offense within the statute could be committed. And although the intent to kill or wound might both be alleged in an indictment, under our present system, yet when the Commonwealth, in presenting the accusation undertakes to specify the one intent, and thus notifies the accused of the nature of the charge, as required by the constitution, it would be a violation of the right secured by that instrument to permit a conviction for another intention, though equally penal, yet not alledged. The 258th section does not embrace the case. That section provides, that the accused may be found guilty of any offense included in the charge in the indictment, not higher than that charged. Such is its purport. The offense here presented is not a different degree of the same, but two intentions, each having the same penalty attached; the intent to kill and the intent to wound, each penal to the same extent, but are each specific offenses under the statute, and not a different degree of the same offense ; nor does the one intent include the other. The Commonwealth charged this intention to kill as that to be relied on for conviction. The instruction and verdict should conform to the charge in the indictment.
    The court erred in leaving it to the jury to decide what was an unlawful shooting. The terms used in the instruction are the same as used in the statute, yet they are too general and indefinite for the construction of a jury. The jury should have been told more definitely what was an unlawful shooting, either that it was a malicious shooting, or a shooting not in self-defense, and would have been murder if death had ensued.
    2. The court should have modified the instruction.
    The first clause of the section of law under which this proceeding, was instituted, prescribes as punishment for wounding in a sudden heat and passion, or in an affray, and not in self-defense, &c. And in the latter clause of the section prescribing a punishment for shooting at, without inflicting a wound, an entirely different phraseology is used. The first part of the section presents a case, where, if death ensues, the offense would be manslaughter ; but the latter part makes shooting with the intent to kill or wound, without the infliction of any wound, of equal criminality with the wounding of the first character, in the first part of the section. It could not have been the intent of the revisors to make the intent to kill or wound as penal as the actual wounding, done with a similar intent; if so, they would have employed the words — “shoot at without inflicting a wound” — immediately after the words “shoot and wound,” in the first part of the section.
    By the Revised Statutes, (page 251,j it is made felony and punished by confinement in the penitentiary, to “wilfully and maliciously shoot and wound with the intent to kill.and evidently the intention of the revisors was to make shooting at, without wounding highly penal, when intentionally done; or in other words, willfully and maliciously shooting with the intent to kill, under such circumstances as would be murder if death ensued, or felony, if a wounding only had taken place. The intent contemplated by the statute is a murderous intent. The words used import that there must be forethought, premeditation — reasoning in the act. Intent, according to Webster, (see large edition,) means “a stretching of the mind toward an object— a purpose, a design.” It must therefore be equivalent to.the words “willful and malicious.” “Intent” ini" plies a purpose — a design — an effort of the mind— an exercise of the reason — the fixing of a purpose ¿ and therefore an intent to kill is synonymous with intent to murder. An act of killing or wounding in sudden heat and passion, is committed in furor brevis, not with intention, not with reasoning.
    
      Intentionally and maliciously import about the same thing in the commission of crime. Killing may be excusable, or it may be murder or manslaughter. Killing in the heat of passion, upon sufficient provocation, is manslaughter — with malice aforethought it is murder, and intent to kill is equivalent to an intent to murder, and has been so held. {See Wharton's Crim. Law, 467,) where this language is used : “An indictment which charges the accused with an assault and battery upon a certain slave, with the intent to commit manslaughter, cannot be construed into an indictment for an assault with intent to kill,” which is understood and has been held “an intent to commit murder.” Authority cited for the text, Bindley vs. the State, W. T. Sf M., 618.
    The question was whether an intention to commit manslaughter was an intention to kill, in the meaning of the statute. It was held not to be, for the reason that an intent to kill is understood to be an intent to commit murder. In other words, a man cannot have an intent to commit manslaughter, because an intent to take life implies purpose, design, forethought, reflection, and hence malicious and would be murder.
    On same page {Wharton's Am. Crim. Law, 467.) it is said in a case upon “an indictment for feloniously assaulting and beating with the intent to disfigure, stronger circumstances of malice aforethought must be proved, then on an indictment for murder it seems express proof of an intent to disfigure must be made.” It is said, however, in Wright vs. the State, 9 Yerger, 342, that “when the stabbing is proved, the law presumes the existence of malice; to rebut which, the proof, either on the part of the State, or of the prisoner, must demonstrate the fact, that •the stabbing was under such circumstances as would, had death ensued therefrom, have mitigated the offense from murder to manslaughter or excusable homicide, or left it doubtful whether It was mot so done.”
    The deduction from the authorities, is, that the words intent to kill or wound, in the statute, import a killing which would he murder, or a wounding which would be felonious, and if such be the correct view of the question, the circuit court erred in refusing to modify the instruction as asked by defendant’s counsel, and did not give the whole law of the case to the jury.
    The jury, by the Instruction as given were limited to the finding of the statutory penalty, and the discretion of the jury is taken away, and it confined to the statutory penalty.
    
      Jas. Harlan, attorney general, for appellee—
    Robinson was prosecuted for unlawfully and maliciously shooting at one Lee Coomer with intent to kill and murder him, with a gun and leaden balls and powder, without inflicting a wound.
    The jury returned the following verdict: “We of the jury, find the defendant guilty of unlawfully shooting at one Lee Coomer, with intent to kill or wound him; and for his said offense that he make his fine to the Commonwealth of Kentucky, by the payment of one cent, and that he be imprisoned in the county jail for six months.”
    A motion for a new trial was made and overruled by the court, and judgment rendered in conformity to the verdict, and the defendant has appealed to this court.
    The defendant was prosecuted under the following statute:
    “If any person unlawfully shoot at another, with intent to kill or wound such person, without inflicting a wound, he shall be fined not exceeding five hundred dollars, and imprisoned not less than six nor more than twelve months.” {Rev. Slat., 264, Sec. 1.)
    If there should be any doubt whether the statute above quoted is applicable to the charge in the indictment, section 258 of the Criminal Code applies. It provides that a defendant may be found guilty of any degree of offense not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.
    The court, át the instance of the commonwealth’s attorney, instructed the jury that if they believed from the evidence, beyond the influence of a reasonable doubt, that the defendant unlawfully shot at Lee Coomer, with a gun loaded with powder and ball, with intent to kill and wound said Coomer, without inflicting a wound, they ought to find the defendant guilty, and assess his fine at not more than five hundred dollars, and imprisonment not less than six, nor more than twelve months.
    The counsel for defendant asked for a modification to the effect, that unless the shooting was done of malice aforethought, or upon premeditation, &e., and if done in sudden heat and passion in an affray, or under such circumstances as would have amounted to manslaughter, if death had ensued, they should acquit the prisoner.
    The court overruled the motion, and this presents the principal, perhaps, the only question for the decision of this court.
    The statute under which this indictment was found cannot be found in the old statutes. It was borrowed from the Virginia revision. The word “maliciously” is introduced into the indictment unnecessarily, but it does not vitiate it. It is good without that word. The defendant did, without the authority of law, shoot at Coomer without wounding him. Such is the verdict of the jury. The modification asked by the defendant’s counsel did.not apply to the case.
    
      The defendant was not prosecuted for a felony, but for a misdemeanor. I admit that in a prosecution for maliciously shooting at and wounding; that no judgment could be rendered against the defendant, unless it would have been murder if the party had died. But no such case is presented in this record.
    February 1.
   Judge Crenshaw

delivered the opinion of the Court.

By the lsi sec. of the Ylth art. Rev. Stat., p. 264, it is provided, that, “If any person unlawfully shoot at another, with intent to kill or wound such person, without inflicting a wound, he shall be fined not exceeding five hundred dollars, and imprisoned not less than six, nor more than twelve months.”

Under this provision an indictment was found, in the Adair Circuit Court, against James J. Robinson. The indictment charges that the defendant “did unlawfully and maliciously shoot at one Lee Coomer, with intent to kill and murder him, (the said Lee Coomer,) with a gun and leaden balls and powder, without inflicting a wound on him, (the said Lee Coomer.”) The defendant pleaded “not guilty,” and the jury sworn in the case, returned the following verdict:

“We of the jury, find the defendant guilty of unlawfully shooting at Lee Coomer, with intent to kill or wound him, and for his said offence, that he make his fine to the commonwealth of Kentucky, by the payment of one cent, and that he be imprisoned in the county jail for six months.”

The court, at the instance of the attorney for the commonwealth, instructed the jury, that, if they believed from the testimony, beyond the. influence of a reasonable doubt, that the defendant unlawfully shot at Lee Coomer, &e., with intent to kill or wound him, without inflicting a wound, &c., they ought to find the defendant guilty, &c.

The defendant objected to the instruction as given, and moved the court so to modify it as to tell the jury, that, unless the shooting was done with malice aforethought, or under such circumstances as would have amounted to murder, (had Coomer been shot and death had ensued,) they ought to acquit the defendant. This modification was refused by the court, and was properly refused, as we think.

1. In an indictment under the lsi section of the nth art. of the Revised Statutes, for shooting at another, page 264, it is not necessary to aver that the shooting was done maliciously,and it was not error for the court to refuse an instruction to the jury, that to authorize a conviction they should believe from the evidence that it was done with malice aforethought.

By the above quoted clause of the Revised Statutes, it is our opinion that the legislative intention is manifested to suppress all unnecessary and unlawful shootings at persons, with intent to kill or wound, whether they might be regarded as done with malice prepense or not. In a sudden quarrel,and in sudden heat and passion, one man may shoot at another with intent- to kill or wound him, not in self-defence, and without any legal excuse or justification; and the shooting may be done under such circumstances as to evince malice, and show that if the person shot at had been stricken, and death had ensued, the party shooting might have been held guilty of murder; or, the circumstances may be such as to show that if the person so shot at had been stricken, and death had ensued, the party shooting might have been held guilty of manslaughter only. It was the intention of the legislature, as we think, to punish any person for shooting at another unlawfully, or without any lawful excuse or justification, whether it may be done under circumstances evincive of malice or not. It was unnecessary, therefore, to charge, as is done in this indictment, that the shooting was done maliciously ; and, as it was unnecessary to aver malice, it was equally unnecessary to prove it; and hence the court did not err in refusing to modify the instruction as requested by the defendant.

The-charge in the indictment is, that the act was done with intent to “kill and murder,” whereas, the language of the statute is, “ with intent to kill or wound.” The indictment would have been sufficient, had it charged simply that the shooting was done with intent to kill; the additional words, “ and murder,” are supererogatory, and neither vitiates the indictment, nor alters the character of the proof necessary to sustain it. Malice is a necessary ingredient to constitute murder; but the word “murder,” is not in the statute, and properly, ought not to have been in the indictment. But, a specific offence, in the very language of the statute, had already been charged, to-wit: A shooting at another with intent to kill, and the additional words were mere surplusage.

2'T1\e m<5lat' shooting with andmlrder; the lury tound ^ defendant guilty of shooting with raoamd^im! Both offenses be alístenseI, Pand ?,ar^e-i, °£ murder being fense^nqiudes that of an intent to lull or wound. (Crim. Code, sec-The Code makes all injuin? but degrees the sa™° of~ íense, and an as saultwithintent degree^of 1Sthe offense of assaulting with the intent to ing’ o/the jury was therefore thorized ajudg-

The jury found the defendant guilty of shooting at Coomer with intent to kill or wound him. The indictment does not charge that the defendant shot at Coomer with intent to wound him, but with intent , to kill him only. Both offences are equally punishable by the statute, yet, it is, in truth, a different thing to shoot at another with an intent to kill, and to shoot at him with intent to wound him only. The former offence is more heinous than the latter, though punishable by the statute to the same extent only ; and, an assault with intent to wound, may justly and properly-be considered an offence in less degree than 1 • 1 • _ . , , . . , an assault with intent to kill. And, the Criminal Code, sec. 258, provides, that, upon an indictment for an offence consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be ° J found guilty of any offence included in that charged in the indictment. And, section 259 of the Code, makes the offences named in each subdivision of that sec- . i , , „ . . tion, degrees of the same offence m the meaning of section 258. The second subdivision includes all injuries to the person by maiming, wounding, beating, and assaulting, whether malicious or from sudden passion, or whether attended or not with intention to kill. Now, in the present case, an offence upon the person is charged, that of shooting at another with intent to kill, which ivas an assault upon him with that intent; and the offence of shooting at another with intent to wound, is a degree of the same offence. All injuries by assaulting, are, by virtue of said section 259, made degrees of the same offense, and an assault with intent to wound, is, therefore a degree of the offence of assaulting with intent .to kill. And, under the indictment, the jury might find the defendant guilty of shooting at Coomer with intent to wound, although the charge is, that the shooting was done with intent to kill. But the jury found, that it was done with the one intent or the other, and this they might well do, as the punishment is the same, whether the intent was the one or the other.

.3. The court can only reverse a judgment in a eriminalcase for errors apparent on the record. (Grim. Code, sec. 348.)

The instruction is not altogether free from objection, in leaving it to the jury to say whether the shooting was unlawful. But, as the facts leave not the slightest doubt that the shooting was done neither in self-defence, nor with any legal excuse or justification, it is impossible that the instruction could have prejudiced the defendant.

And, section 348, of the Code, declares that a judgment shall only he reversed for errors of law apparent on the record, to the prejudice of the defendant.

Wherefore, the judgment is affirmed.  