
    Thomas Callahan v. The State of Ohio.
    1. Where a pistol-shot, discharged with criminal intent at one person, wounds another, who is at the time known to be in such position or proximity that his injury may be reasonably apprehended as a probable consequence of the act, a conviction on an indictment averring the shooting of the latter with intent, is good, under the twenty-fourth section of the crimes act, and it is not error on the trial to instruct the jury accordingly.
    2. On the trial of a criminal.cause, the court may properly refuse to give to the jury a specific instruction which, though correct under a different state of facts, requires essential modification to prevent it from misleading the jury and excluding from their consideration the particular and material facts and circumstances of the case in hand.
    3. If one maliciously intending to kill, wound or maim B, by mistake shoots at and wounds A, supposing him to be B, a conviction on an indictment for maliciously shooting A, with intent, is good, under the twenty-fourth section of the crimes act.
    Error to tbe court of common pleas of Hamilton county.
    Callahan was convicted under the twenty-fourth section ■of the crimes’ act, (S. & S. 265,) for maliciously shooting Thomas Keegan, with intent etc. The indictment, in differ<ent counts, alleged the intent to kill, to wound and to maim Keegan. A verdict of guilty on the second count was returned. On the trial in the common pleas, the prisoner, by his counsel, excepted to the competency of evidence, to ■the sufficiency of the evidence, and to the rulings of the court.
    It appears' from the record that about half-past seven . o’clock in the evening of March 4th, 1871, Keegan was in :the custody of two police officers, who were conducting Rim to one of the station-houses, in the city of Cincinnati, 'One having hold of each arm. While they were moving forward on one of the streets of the city, Callahan came up in their rear, and, demanding the release of Keegan, im mediately discharged a pistol-shot, wounding him, but doing no injury to the officers.
    In the progress of the trial Callahan, by his counsel, requested the court to instruct the jury “that, in order to convict the prisoner, they must be satisfied from the evidence that he fired the pistol with intent to kill, wound or maim Thomas Keegan ; that the law always presumes that every man intends the natural consequences of his acts; but if the jury are satisfied from the evidence that the prisoner did not intend to kill, wound or maim Thomas Keegan, they are bound to acquit him ; and that before they can convict him they must be satisfied, beyond a reasonable doubt, that he did shoot him with intent to kill, wound or maim him, as alleged in the indictment: ” which instruction the court gave as requested, with this qualification : “ That, in order to prove the intent, it was not necessary to show a special intent to shoot Thomas Keegan; that if a man fires recklessly into a crowd, he may be convicted of an intent to kill, wound or maim any person who may be hit; or if he unlawfully and maliciously fires at one man, intending to kill, wound or maim him, and some other man stands so near that there is danger of his being hit, and the man intended to be shot is not injured, but the other man is, he may be convicted of shooting the man who is actually shot.”
    Callahan, by his counsel, requested the court to further instruct the jury, “ that if they should find from the evidence that the prisoner, intending to rescue Thomas Keegan from the hands of the officérs, fired at said officers, intending to kill, wound or maim them, and did not fire at, or intend to injure said Keegan, that they were bound to acquit him; ” which instruction the court refused to give, but did charge the jury “ that every man is presumed to intend the natural consequences of his acts ; and if he (the prisoner) maliciously and unlawfully fired into a crowd, or if he unlawfully and maliciously fired at the officers, and Keegan was so close to them that there was danger of shooting him, and if Keegan was wounded and the officers not, the jury might find him guilty, although he did not intend to shoot Keegan, but did intend to shoot the officers.”
    Callahan objected to certain evidence the State was allowed to introduce to impeach a witness called by him to prove an alibi. The character of this evidence appears in the opinion of the court.
    
      John O. Healy for plaintiff in errorr :
    1. The plaintiff in error was improperly convicted of shooting with intent to wound Keegan, because proof of the intent to wound him was wanting. Rex v. Holt, 7 Car. & Payne, 518.
    2. It was error to permit the State, in order - to impeach the witness called by the defense to prove an alibi, to prove what the witness said Callahan had said to him on a certain occasion, and thus introduce Callahan’s confession of guilt by hearsay.
    
      W. M. Amp/, pros, att’y, for the State:
    1. The conviction of Callahan was right. Walker v. The State, 8 Ind. 290; Regina v. Smith, 33 E. L. Rep. 567 ; Rex v. Lovell, R. & R. C. C. 1: Rex v. Jarvis, 2 Moody & Rob. 40.
    2. Hearsay evidence was not admitted on the trial. The impeaching evidence was offered and admitted, not to prove Callahan’s admission of the shooting, but to contradict and thereby impeach a witness called by him.
   West, J.

The prisoner was convicted of wounding Thomas Keegan by shooting him with intent, &g. The prosecution was instituted under section twenty-four of the crimes act, (S. & S. 265,) which provides “that if any person shall maliciously shoot * * * any other person with intent to kill, wound or maim such person, every person so offending shall be deemed guilty of a misdemeanor,” &c. The questions of chief importance presented by the record arise on exceptions by the prisoner’s counsel to the ruling of the court, and are based on the assumption that criminal intent, in the sense of this statute, cannot be asserted of a killing, wounding or maiming in fact, unless the victim of the shot was the real object of the malice which induced it.

To us this seems too narrow a construction of tho statute. Criminal intent may be properly asserted of an injury by malicious shooting in either of the following cases :

1. Where the person shot is the real object of the perpetrator’s malice ; in which case the deed falls within the plain letter of the statute.

2. Where a shot discharged at one injures another, who is at the time known to be in such position or proximity that his injury may be reasonably apprehended as a probable consequence of- the act; in which case the law does not permit such reckless disregard of, and indifference to. results to pass with impunity, but will hold the intent to have embraced the victim ; and the principle is the same whether one or many are imperiled. Walker v. The State, 8 Ind. 290.

3. Where one is purposely shot, under the mistaken supposition that he is a different person ; in which case the immediate objective intention of the perpetrator is to hit the person at whom his shot is directed, while his subjective intention, which impels the deed, is to injure another against whom his malice is inflamed. In Regina v. Smith, 33 Eng. L. & Eq. R. 567, the exact question was raised on an indictment under the statute of 1 Victoria, which is here raised under our statute, and the conviction, on a question reserved, was held good.

I. It was the duty of the court, on the trial below, to instruct the jury in the law arising on the facts which the evidence tended to disclose, and which, as shown by the record, were clearly sufficient to warrant a conviction under either the second or third of the above propositions. If the instruction had been given as requested, without qualification, all the evidence arising under these propositions would have been excluded from the-jury, and their deliberations have been restricted to the consideration of a case under the first proposition, which the evidence did not make. The court was therefore right in qualifying the instruction first requested.

II. For the same reason the court was justified in refusing to give , the instruction secondly requested. It had already, in substance, been given in the first instruction, and there was no propriety in repeating it, unless the prisoner was entitled to have it without qualification. This he was uot entitled to have, for, in the form requested, though sufficient to instruct the jury in a case under the first proposition, it Avould have misled them in the case at bar, and hence its refusal was proper.

III. The objection that the evidence was insufficient, rests upon the same grounds on which the exceptions to the rulings of the court are based, and is disposed of by their determination. The jury may have found that the prisoner fired recklessly at the officers while Keegan AVas known to be exposed to the probable consequence of the act; or that, in the darkness, he shot Keegan by mistake, supposing him to be the officer. The evidence Avill sustain the verdict on either hypothesis. Walker v. The State, and Regina v. Smith, supra.

IY. On the trial, the prisoner, to prove an alibi, offered a Avitness, Avho testified that about eight o’clock in the evening of the shooting he sa\v the prisoner at a point two miles from the scene of the crime, Avho informed Avitness that he wanted to obtain a pass over the railroad to St. Louis, for that he was out of Avork and desired to go to that city. The State having, on cross-examination, laid the foundation therefor, was permitted to prove, by way of impeaching said Avitness, that he, in relating to officer Heltman this pretended conversation with the prisoner, stated that the latter said he had shot Keegan, and Avanted to get a pass over the railroad to go to St. Louis.

The evidence of this conversation with the prisoner AVas immateu.al. It could not tend to prove or disprove any matter in issue. The truth of such conversation may be conceded, and yet the prisoner be guilty. The impeaching evidence was therefore wholly immaterial, and not the subject of error.

The conviction will be sustained, and the cause remanded for execution of sentence.

Welch, C. J., and White, Day ana McIlvaine, JJ., concurred.  