
    
      The State v Nathan Sims.
    
    Where two assaults are alleged in- an- indictment, the practice is to require Solicitor, after the evidence has been heard in support of each, and not before, to elect upon which he will rest the case for the State.
    To ride a horse so near to one as to endanger his person^ and create a belief in his mind That it was-the intention of the rider to ride over him, would be an-assault.
    
      Before- O’Neall, J. at Laurens, Spring Term, 1848»
    The defendant was indicted for an assault on Israel Holt. The Solicitor at first gave evidence of an assault in the morning ; after the examination and cross examination of the prosecutor as to that, he recalled him to prove another assault. He was allowed to go on and prove-an assault, in the evening : and then, on motion of the defendant’s counsel, he was compelled to elect on which he would rest the case for the State. He elected the assault in the evening. The defendant’s counsel insisted that the State should elect on which assault she would stand, before the witness was examined, as to the assault in the evening. The circuit Judge thought ^ita very immaterial matter, and allowed the Solicitor to hear the- prosecutor’s proof, before he put him to the election.
    Holt was a surveyor, and was about running a line for others, in which the defendant was interested: he had required them to notify him of it: passing his place, the morning of the survey, and fearing, as he said, that he had not had notice, and seeing him in his field, he called to him and asked him if he had noticed he replied, “you infernal scamp, if you run that line I’ll blow a ball through you.’’
    A quarrel ensued, and much recrimination and abuse, and some show of violence on the part of the defendant, which, however, need not be stated.
    Holt went on and ran the line; in the evening he and Jesse W. Fuller were in the act of starting from the house of Silas Fuller — when the defendant and his wife were seen riding along a path near. Holt had spoken of his (defendant’s) conduct in the morning, as indicating insanity; Silas Fuller proposed to Jesse, that they should walk down to the path and see him. They went; the prosecutor got over the fence, into the road or path leading to his own home, and was walking on, and as the defendant came alongside of him, he said to him in a low tone, '•'•you did not shoot me.” He said “no, but I’ll horsewhip you.” He turned his horse across the path before the prosecutor, and then shook his hickory over _his head, in striking distance : he rode his horse twice very * near to the prosecutor : the third time he rode nearly upon him — -the prosecutor said, don’t ride upon me, and thereupon struck the horse with his jacob-staff on the neck; the horse fell on his haunches : the defendant jumped down and picked up a. junk, but dropped it without attempting to throw. In the course of the aifair, something was said about fighting, defendant said “I can’t fight you all.” Jessee W. Fuller said, I will not interfere — Silas Fuller said “you shall not fight.”
    There was a great deal of other testimony, mostly as to the character of the prosecutor, which was however most amply sustained.
    The jury were told, if the defendant rode his horse so near to the prosecutor, as to endanger his person and create a belief in his mind that it was his intention to ride upon him, it would bean assault; so too, if he shook his hickory over his head, indicating an intention to strike, and within striking distance, it would also be an assault. His Honor said to the jury, that he did not think the defendant intended either ' to ride upon the prosecutor, or to strike him, yet he thought, if his action and conduct was such as to create the belief in the mind of the prosecutor, that he intended to ride upon or strike him, he would be guilty of an assault.
    
      l Bac. Abr.
    243-fstrob ef ’
    The jury convicted the defendant, who appealed, and moved for a new trial.
    1st. Because the State, after going into evidence of an assault, alleged to have been committed in the morning, was permitted to offer evidence of another assault, charged to have been committed in the evening, before it was required to elect for which assault it would proceed : notwithstanding the defendant insisted on the election being made before evidence was given of the assault, charged in the evening.
    2d. Because the Court erred in charging the jury that the defendant might be found guilty of an assault, if he rode his horse so near the prosecutor as to endanger his person, although he intended to commit no assault.
    3d. Because the verdict is contrary to law and evidence.
    Sullivan, for the motion.
    Whitner, Solicitor contra.
   EvaNS, J.

delivered the opinion of the Court.

The course pursued in this case, of requiring the Solicitor to elect after the evidence has been heard, is the usual course pursued in like cases. Indeed. I do not well perceive how an election can be made, until it is known that two offences have been committed.

As to the second ground, there is no room for any difference of opinion. The general rule is that the intention must unite with the act, to make it morally or legally crimiual.

But human tribunals have no means by which to determine the intention, but the acts and declarations of the party. Acts and words are the outward signs of intention, and we cannot know the motive which influences any act but by these.

If one raise his fist, or a stick, in an attitude to strike, or a gun in a posture to shoot, we may well conclude he intends what his acts seem to indicate, and the law permits him who is thus endangered to defend himself against the threatened aggression. But if the act be accompanied by declarations or other unquestionable evidences of an absence of intention to do any violence, there the party thus apparently put in jeopardy is notified of the absence of any intention to commit a battery, and need not resort to violence in order to prevent it. This is the principle upon which the cases referred to in the argument were decided.

This case does not come within the principle, and the motion is dismissed. ' '

The whole Court concurred.

Motion refused.  