
    Cooley v. The State.
    (Knoxville.
    October 28, 1889.)
    I. Assault. Actual and personal.
    
    The assault is not constructive merely, but actual and personal, where one, intending violence to another sheltered within a house, casts upon the roof of the house lighted dynamite cartridges, known to possess sufficient explosive force to crush the house and kill the inmates, but failing of that result only by reason of the fortunate accident that they rolled from the roof before explosion.
    Case cited and approved : Cowley.». State, io Lea, 285.
    Cited and distinguished: Evans v. State, 1 Hum., 394; State». Freels, 3 Hum., 228.
    2. Same. Sufficient in cases of felonious assaults.
    
    Such assault constitutes the felony defined by Code, §5375 (M. & V.) and §4626 (T. & S.), if made feloniously, with malice aforethought, and with intent to commit murder in first degree.
    FROM ROANE.
    Appeal in error from Circuit Court of Boane County. S. A. Iíogers, J.
    Nelson & BüRke for Cooley.
    Attorney-general Pickle for State.
   Caldwell, J.

Talbert Cooley and James Cooley were jointly indicted, in tlie Circuit Court of Roane County, for a willful, felonious, unlawful, deliberate, premeditated, and malicious- assault, with dynamite, upon tbe body of Mack Brown, with, intent, then and there, unlawfully, feloniously, willfully, deliberately, premeditatedly, and of malice aforethought the said Mack Brown to kill, and upon him commit the crime and felony of murder in the first degree.

James fled the county. Talbert was tried and convicted of an assault with intent to commit murder in the first degree as charged, and his punishment was fixed at five years in the penitentiary.

He has appealed in error, and for him it is here insisted that the State has not made out her case.

The indictment is based upon Section. 52, Ch. 23, Acts of 1829, which is as follows:

“Whoever shall feloniously, and with malice aforethought, assault any person, with intent to commit murder in the first degree, * * * though death shall not ensue, shall, on conviction, be imprisoned in the penitentiary not less than three nor more than twenty-one years.” Code, (M. & V.) § 5375; (T. & S.) §4626.

To authorize a conviction under this Act, it has been held that the assault must be actual and personal, as conti’adistinguished from a constructive assault, and that besetting the house of another does not constitute the required assault. Evans v. The State, 1 Hum., 394; The State v. Freels, 3 Hum., 228.

The trial Judge, following these cases, instructed the jury that to warrant a conviction in this case it must appear from the proof that the defendant “made an actual assault upon the said Mack Brown,” etc.

The contention in behalf of the plaintiff in error is that, under this construction of the statute, and in view of these decisions and the instruction of the Court, the State has failed to establish his guilt. In other words, it is argued that the proof does not show an actual assault, and that, therefore, the verdict is not sustained by the evidence.

The clear, positive, and uncontroverted testimony, briefly and in substance, is that Mack Brown, the person upon whom the assault is charged to have been made, was at the house of his tenant, Mrs. Brimer, near a mining town in Roane County, on the night of January 12, 1889, when, at the hour of eight or nine o’clock, Talbert Cooley (the defendant), James Cooley, and three unknown men •went to- that house and • called for said Mack, Brown, and invited him out of the house for “ a settlement,” James Cooley saying, with an oath, “Mack, you shot seven shots at me, and I want to shoot seven at you, and hit you too;” that, upon Brown’s refusal to accept this invitation, Talbert Cooley pressed the matter further by saying, “Mack Brown, you know us, and if you don’t open tliat door and come out we will blow up the d — d house with dynamite;” that James Cooley added, “If you don’t open the door, I will blow the house down with dynamite, and kill the last d — d one of you;” that, on Brown’s further declination, the five men withdrew, and after an absence of twenty or twenty-five minutes, returned, one of them immediately to the house and the others “behind the crib,” so -near-by that they were heard talking by pei’sons in the house; that the one nearest to the house threw five dynamite cartridges around and upon the roof of the houge, four of them exploding with great force and violence, “tearing up” and making “great holes in the ground,” the shock shaking, “the daubing out of the house” and sevei’ely “jarring” Mack Brown and Mrs. Brimer, the latter “until she was apparently dead for awhile; ” that if the cartridges had exploded while upon the house, they “would have crushed it into atoms and killed” all the inmates.

This proof is plenary, if it be possible to make it so without showing actual contact of the instrument used with the person of the prosecutor, and that cannot be required. It clearly and distinctly makes out the offense ehai-ged, in any and every view of the statute.

There was not a mere besetting of the house, which is called a constructive assault in the cases refei’red to; that was the smallest part of the wrong done. In addition to besetting 'the house, there was a deliberate, premeditated, felonious, and bold attempt to accomplish what was threatened, the utter destruction of the house and its inmates; and that effort was so well put forth that its object was defeated and the lives saved alone by the unexpected, though fortunate, circumstance that the cartridges rolled from the roof of the house before explosion.

The assault was not intended, and did not operate, as a simple restraint, interference, or threat; nor as a mere means of exciting fear without endangering the person. It was, to all intents and purposes, actual and personal, bringing Brown’s corporal safety into great jeopardy, and, in fact, resulting in slight personal injury, in that he was by the explosion “jarred considerably.” Ilis life was imperiled; actual wrong and violence were inflicted upon his person.

The present case is stronger in its facts than that of Cowley v. The State, in which this Court held that “when a person shoots a ball through the door of a dwelling-house, intending to assault a particular individuál as the supposed occupant, he commits an assault upon the actual occupant,” though a different person. 10 Lea, 285.

The charge of the Court is correct and the evidence ample on the subject of conspiracy, or concert of purpose and action, among the several persons present (the defendant and his companions in the crime), and it is immaterial which one of them performed the physical act of throwing the dynamite.

Let the judgment be affirmed.  