§ 236. Classification of assaults-Distinguishing feature. -Assaults are classified as simple assaults and aggravated assaults.

At common law, the distinguishing feature of these two classes of assault lies in the nature of the criminal intent involved. In a simple assault a general criminal intent is sufficient. This intent may be inferred from the act. Moreover, it is not essential that it be alleged in the pleadings. On the other hand, an aggravated assault involves a specific criminal intent. Moreover, it must be alleged in the pleadings and proved. And the penalty for an aggravated assault is, of course, greater than that for a simple assault. At common law, however, both classes of assault are only misdemeanors; but in many states aggravated assaults are made felonies by statute.30

8237. The aggravated assaults.-The chief aggravated assaults are the following: (1) Assault with intent to murder; (2) Assault with intent to kill; (3) Assault with intent to rob; (4) Assault with intent to commit rape; (5) Assault with intent to do grievous bodily harm; and (6) Assault with a deadly weapon.

§ 238. Assault with intent to murder.-This offense involves the following two distinct elements: (1) A specific intent to murder; (2) an assault or attempt to carry the intent into execution.31

Since the gist of this offense is the specific intent to murder,32 this intent must be alleged in the indictment. It is also essential that the malicious intent involved in this

30 Simpson v. State, 59 Ala. 1, 388, 28 Atl. 572; Smith v. State, 83 31 Am. Rep. In. Ala. 26, 3 So. 551.

31 People v. Devine, 59 Cal. 630; Crosby v. People, 137 Ill. 325, 27 N. E. 49; State v. Fiske, 63 Conn.

32 Hayes v. State, 14 Tex. App. 330. See also Long v. State, 46 Ind. 582.

crime be proved.33 This may be done, nowever, by circumstantial evidence. Thus, it may be inferred from the use of a deadly weapon, or from the character of the assault and other attending circumstances.34 Ordinarily, this offense is committed by the use of a deadly weapon. It may, however, be committed without the use of such a weapon.35

§ 239. Adaptation of act done and means employed to accomplish purpose.-To constitute an assault with intent to murder, the act done and the means employed must be adapted to accomplish the end sought. It is not essential that the adaptation be real.36 It need only be apparent; because the evil to be corrected relates to apparent danger, rather than to actual injury sustained.37 If it be evident to every reasonable mind that the means used are entirely inadequate to the consummation of the intent charged, that fact will rebut or disprove the felonious intent, and a conviction can not be justified. Where the object is not accomplished because of an impediment which is of such a nature as to be wholly unknown to the offender, who uses appropriate means, though not fully or only apparently adapted to the object, the criminal attempt is committed.38 Hence, under an indictment for assault with intent to murder, if the proof show that the accused pointed a loaded gun at another and snapped it several times, but there was no cap on it, and the court charged the jury that the absence of the cap will not avail the accused if he believed at the time that it was on the gun, but the jury must be satisfied be

33 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1n; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Slatterly v. People, 58 N. Y. 354; People v. Prague, 72 Mich. 178, 40 N. W. 243.

34 People v. Lilley, 43 Mich. 521, 5 N. W. 982. See also Wright v. People, 33 Mich. 300.

35 State v. Reed, 40 Vt. 603.

36 Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691; Kunkle v. State, 32 Ind. 220.

37 1 Bish. New Crim. L. (8th ed.),

$ 754.

38 Kunkle v. State, 32 Ind. 220.

yond all reasonable doubt that he did not know there was no cap on the gun, a conviction will be sustained.39 It has been often held that to constitute this offense, a specific intent to kill must be proved.40 It also has been held that the means employed must be actually adapted to accomplish the end sought. This view, however, is erroneous. It is not essential to constitute an assault, or an assault and battery, with intent to commit a felony, that the intent and the present ability to execute be conjoined.41

§ 240. Proof that death of victim would have been murder essential, but not sufficient.-To constitute assault with intent to murder, the proof must show that had the victim died the crime would have been murder.43 On the other hand, proof that had the victim died the crime would have been murder is not of itself sufficient proof of assault with intent to murder. This is owing to the fact that murder involves only a general criminal intent and not necessarily a specific fntent to kill.44

§ 241. Assault with intent to commit manslaughter.-Is there such a crime as assault with intent to commit manslaughter? Upon this point the decisions are not harmonious. In Iowa the question has been answered in the affirmative and it is held that if an unlawful assault was made upon reasonable provocation in the heat of blood, but without malice, and without legal excuse, and with in

39 Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691.

40 State v. Bennet, 128 Iowa 117, 5 Ann. Cas. 997; Chowning v. State, 91 Ark. 503, 121 S. W. 735, 18 Ann. Cas. 529.

43 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1n; State v. Conner, 59 Iowa 357, 13 N. W. 327, 44 Am. Rep. 686; People v. Prague, 72 Mich. 178, 40 N. W. 243; Hamilton v. People, 113 Ill. 34, 55 Am.

41 State v. Swails, 8 Ind. 524, 65. Rep. 396; Elliott v. State, 46 Ga. Am. Dec. 772.

42 Kunkle v. State, 32 Ind. 220;

1 Bish. New Crim. L. (8th ed.), § 750.

159; McCormack v. State, 102 Ala. 156, 15 So. 438.

44 Simpson v. State, 59 Ala: 1, 31 Am. Rep. In.

tent to kill, then the defendant would be guilty of an assault with intent to commit manslaughter. On the other hand, the courts of some states, including those of Illinois and Michigan, hold the contrary view. It is said that if there was an intent to take life and the killing would not be excusable or justifiable, it would be assault with intent to commit murder;46 that a specific intent can not be found to exist in the absence of reflection and deliberation.47

The latter view is correct upon principle and supported by the weight of authority.

§ 242. Assault with intent to kill.-This offense differs from assault with intent to murder in the intent involved. In the case of intent to murder the proof must be such as shows that, if death had been caused by the assault, the assailant would have been guilty of murder; and in the case of assault with intent to kill the proof need only be such as that, had death ensued, the crime would have been manslaughter. In the former case the intent must be the result of malice aforethought, and in the latter, the result of sudden passion or emotion without time for deliberation or reflection.48

A conviction of assault with intent to kill may be proper though the wounds actually inflicted were not such as would be usually fatal.49 On the other hand, the test whether a conviction of assault with intent to murder should be sustained is not whether the accused inflicted a wound likely to produce death, but whether the assault was of a character likely to be attended with dangerous consequences

45 State v. Connor, 59 Iowa 357, 13 N. W. 327, 44 Am. Rep. 686. 46 Moore v. People, 146 Ill. 600, 35 N. E. 166.

47 People v. Lilley, 43 Mich. 521, 5 N. W. 982. See also Wright v. People, 33 Mich. 300.

48 State v. Reed, 40 Vt. 603. See also State v. McGuire, 84 Conn. 470, 80 Atl. 761, 38 L. R. A. (N. S.) 1045.

49 Crosby v. People, 137 Ill. 325, 27 N. E. 49.

and of a nature to cause death, in which case malicious intent will be presumed.50

§ 243. Assault with intent to rob.-To constitute assault with intent to rob the act must be done with the specific intent to take from the person of another, or from his presence, his personal property, by violence or putting him in fear. If the intent be to take his property by stealth, and not by violence or putting in fear, the crime of assault with intent to rob will not be committed.

§ 244. Assault with intent to commit rape.-To constitute assault with intent to commit rape the act must be accompanied with a specific intent to have carnal knowledge of the woman without her consent and by the use of such force as should be sufficient to overcome such resistance as she should make.51 On the other hand, if the proof show that the intent of the accused was to have carnal knowledge of the woman, but without force, and not against her consent, it will fall short of proving him guilty of assault with intent to commit rape.52

The foregoing propositions are not applicable, of course, when the female is under the age of consent. When the evidence shows that the accused intended forcibly to have carnal knowledge of the woman and his efforts failed owing to his inability to overcome her resistance, or from fear, a conviction will be sustained.53 Some courts hold that actual violence is essential to constitute this offense.54

50 Crowell v. People, 190 I11. 508. 60 N. E. 872; People v. Connors, 253 Ill. 266, 97 N. E. 643, 39 L. R. A. (N. S.) 143n, Ann. Cas. 1913A, 196n.

51 Shields v. State, 32 Tex. Cr. 498, 502, 23 S. W. 893; State v. Sanders, 92 S. Car. 427, 75 S. E. 702, 42 L. R. A. (N. S.) 424.

52 State v. Canada, 68 Iowa 397,

27 N. W. 288; People v. Manchego, 80 Cal. 306, 22 Pac. 223; Douglas v. State, 105 Ark. 218, 150 S. W. 860, 42 L. R. A. (N. S.) 524n.

53 Taylor v. State, 50 Ga. 79; Lewis v. State, 35 Ala. 380; People v. Stewart, 97 Cal. 238, 32 Pac. 8 See also Glover v. Commonwealth 86 Va. 382, 10 S. E. 420.

54 State v. Wells, 31 Conn. 210