Jeff v. State

Harris, J.: An indictment was returned against tbe plaintiff in error for an assault upon a white person with intent to kill, which contains two counts. Tbe first count Charges that tbe assault was made upon tbe master. The second count charges that the assault was made upon the employer; and it is first insisted in argument, by counsel for the plaintiff in error, that the proof supports neither count in the indictment, in this respect. We think the proof on this point fully sufficient. . It is insisted, again, that the instructions asked by tbe state, and given by tbe court, were erroneous,- because they, in effect, excluded from tbe consideration of the jury the “ intent ” with which tbe assault was made, which (under tbe statute, Code, p. 248, article 59, on which the indictment was framed) constitutes tbe gist of the offense. [1258] This objection is well taken. The first charge given for the state, although, perhaps, not so intended, substantially instructs the jury, that if the plaintiff in error “ made an assault and battery upon his master, or employer, with a deadly weapon, and not in necessary self-defense, then they will find him guilty, as charged,” whether he intended to kill him or not, thereby excluding the plaintiff in error from the benefit of all testimony tending to rebut the legal presumption arising from the use of a deadly weapon. In presumption of law, the plaintiff in error, in the absence of proof to the contrary, will be held to have intended the natural and probable consequences of every act deliberately done by him. But this presumption only amounts to friona facie, and not conclusive proof of such intention. The jury should have been left free to consider whether the testimony offered by the accused to rebut this legal presumption, or otherwise submitted to them on the part of the state, satisfied their minds of the absence of such intention. The remaining instructions given for the state correctly expound the rules of law on the subject to which they relate. It is, lastly, urged that the court erred in refusing the instructions asked for the'accused. We have already held that 'the proof was sufficient to support the indictment, charging that the assault was made on the master, as well as the counts charging it have been made on the employer. It will not be necessary, therefore, to notice further the first and last instructions refused. The remaining instructions refused assert the proposition that, notwithstanding the friona facie legal presumption that the accxxsed intended to kill, arising from the unlawful assault and battery committed by him with a deadly weapon, yet the burden of proof rests on the state to establish by evidence, aliuoide, the guilty intent. The modification to the second charge, asked by the accused, intended to assert that, in such case, the onus of proving some other, intent, or the absence of all criminal intent, is imposed upon the accused. This modification was properly added, and the third instruction properly refused. [1259] But, for the error in the first instruction for the state, the judgment will be reversed, cause remanded, and a venire de novo awardéd.