
    THE STATE vs. ANDERSON.
    NASHVILLE,
    Nov Term, 1804.
    In an indictment for an assault and battery with an intent to murder, the Superior Court, has jurisdiction, and it is the intent with which the injury was inflicted that constitutes, the offence.
    Indictment for an assault and battery with an intent to murder—plea not guilty.
    The defendant with five or six others in company, were quarrelling with a man by the name of Stephens.
    The prosecutor, M'Bride, together with Capt. Penix, endeavored in a peaceable manner to reconcile them ; one struck the prosecutor, a fight ensued, from which Penix parted them, and took hold of the prosecutor in order to carry him into the house, but when on the sill of the door he was struck by a stone thrown by the defendant, on the upper part of the nose, which knocked him down, and for a small time put him out of his senses.
    The stroke lacerated his nose in such a manner, that in drinking, water passed through the wound before it healed.
    Two witnesses proved that the defendant acknowledged at different times, his having thrown the stone at the prosecutor, with an intention to kill him, but that he missed his aim, which he was sorry for.
    
      The attorney general opened the case for the state,
    and argued that if M'Bride had been killed it would have been murder, and that the confession of the defendant with respect to his intention was the highest proof. Leach cr. Law. 248, Foster 295.
    
      Barry, Wharton and Williams moved to quash the indictment upon the principle that the act of assembly, 1797 c. 45, had given exclusive cognizance to the county courts of all indictments for assaults and batteries—that the charge being coupled with an intent to murder, could not vary the case ; the assault and battery was the gist and substance of the charge, and the intent a mere incidental circumstance not essential to the existence of the offence, attached to it as to jurisdiction, nor could it be separated so as to give the court cognizance. They said it was their understanding, that it had been so decided in this court, when his honor Judge Jackson presided.
    
      Overton J. It is important that uniformity in decision should be preserved. It is this only which constitutes law, but considering the case as res integra I should be strongly inclined to think that this court has cognizance of the offence as charged in the indictment, and unless some adjudged case can be produced, it were proper to consider it in that view. Blackstone, Hawkins and other writers on Crown law, have noticed a distinction between assaults and batteries merely, and such as were coupled with an intent to kill. They have strongly marked this distinction by assigning different degrees of punishment to the offences—it is the motive of the agent inflicting an injury, which constitutes the nature of the crime, and surely an assault and battery with an intent to chastise only, must in its nature, be a different offence from such an injury proceeding from an intent to kill. By the principles of the common law, the supreme court of the country possessed a general jurisdiction. The powers of the inferior courts were portions of this jurisdiction. The act being in derogation of the common law which gives citizens and the state access to a particular tribunal for the procurement of justice, should not be extended in its meaning by an equitable construction—the meaning of the act is that the county courts shall have exclusive jurisdiction of assaults and batteries barely, but not when united with an intent to murder.
    
      White J. and Campbell J. accorded in this opinion.
    
      The counsel for the defendant
    
    then proceeded in their argument, and assumed it as a position in favor of the defendant, that the jury must not only find an intent to kill, but that such intent if effectuated would constitute murder, so as to make the defendant guilty in this court. Several authorities were read, marking the difference between murder, and other species of homicide, from which it was inferred that had death ensued from the stroke of the stone, it would have been manslaughter only, and not murder, on account of the provocation and heat of blood. It was urged that if a person be slain by one in a passion, it is not murder, though the killer intend to kill at the moment, but manslaughter only. Upon this ground the defendant must be acquitted, but particularly when the jury perceive from the evidence that the prosecutor was an officious interloper, who was intermeddling in the quarrel of others.
    
      The attorney general argued e contra ; and
   Per curiam.

The true ground upon which this question rests, is whether it would have been murder, had death ensued from the stroke of the stone ; homicide is presumed to be murder unless circumstances are made to appear which extenuate, the killing, and render it either justifiable, or excusable homicide. It is a question which may be determined by a jury, what degree of provocation shall mitigate the offence The state of the mind is the criterion from which an opinion must be formed—the provocation should appear so great as to produce temporary loss of reason by the ascendency of passion. It must be murder where an intent to kill accompanies the act producing death—the law in tenderness to human frailty under such circumstances of great provocation as to produce a suspension of the empire of reason, suffers the offence to be considered manslaughter only: but the idea of volition or an intent to kill includes malice prepense, and removes the very basis upon which manslaughter is founded, which is such a temporary derangement of the mind as to be incapable of seeing the immediate consequences of its own acts.

The law knows of no specific time, within which an intent to kill must be formed so as to make it murder. If the will accompanies the act, a moment antecedent to the act itself, which causes death, it seems to be as completely sufficient to make the offence murder, as it it were a day or any other time.

Should the jury be of opinion, that it was the desire of the prosecutor in a peaceable manner, to restore harmony to the company who were quarrelling, they will consider it a worthy and lawful act, and so far from being an improper intermeddling was his duty as a good citizen to do so.

Should the jury find that the defendant threw the stone which struck the prosecutor, with an intent to kill, they will find him guilty, otherwise not.

The jury found the defendant guilty. It was proved that he had not any property, The court fined him ten dollars and adjudged that he should be imprisoned two months and until the fine should be paid. 
      
       The facts being ascertained, it is question of law, & not of fact Oneby's case Str. 773 Fosters C L 2553 Cranch 298 2 Wilsons Lecture 196.
     