#### THE STATE *vs.*JAMES W. BEAVER.

Proof of *intent*to kill.

Indicted for an assault, with intent to kill William B. Crammer.

The prisoner’s counsel denied that the test proposed by the State, whether the assault was with intent to commit murder, namely, whether if the person wounded had died, it would have been murder, was a correct test. Malice was an inference of law; intent was an inference of fact, from other facts proved. He cited 3 *Harr. Rep.,*371, *The State*vs. *Negro Bill Johnson.*

There was in point of fact no intent even to assault Crammer. The dispute was not with him ; and the purpose, whatever it was, was not to shoot him ; but to shoot another. If malice was the question? that would be inferred by law from the illegal act; but the in*509tent was a fact charged in the indictment, and charged to be an intent to kill William Crammer. There was no proof of any such intent. The threat was that he would sho'ót the person who dared to throw off his fasts, and thus put him adrift in the ice, with a disabled vessel. An aggravated assault and battery may be punished in the discretion of the court by fine and imprisonment; but an assault with intent to murder is a much more aggravated offence, implying deliberation and malice, and which the law intends to punish as such. The intent is the gravamen of the complaint; and without such intent being proved, the indictment cannot be sustained.

The case was argued by *Mr.*Gordon, for the State, and *Mr. J. A. Bayard*and *T. F.*Bayard, for the defence. The defence insisted that as it must be alledged and was alledged, that the assault was on William B. Crammer, with intent to kill *him,*such an intent must be proved; though on a question of malice, in case of murder it would not be necessary to prove that the man murdered was the one intended to be injured. The point of discussion was, whether intent was an inference of law; like malice was; or a fact to be proved in itself, though by inference from other facts. On this question, the defence cited 3 *Barr. Rep.,*371; *Whar. Amer. Crim. Law,*467. They cited the case of a man shooting his own second in a duel accidentally; if he killed him it would be murder, for the law would imply malice from the illegal act; but the principal could not be convicted of an assault on his own second, with intent to kill him. So of a party indicted for an assault, with intent to commit a rape, if violence were done to a person who interfered to prevent it, and such violence resulted in death, it would be murder, but how in such case could it be said the assault on such person was with intent to commit a rape ?

The State contra referred to, but did not produce, 3 *Crown*Cases, 60; *Jebb's Rep.*

On the question the Court divided, and Judge Harrington charged the jury that intent was not to be implied, as malice might be, solely from the unlawful act; but as the intent to kill Crammer was a fact charged in the indictment, and an essential ingredient in the offence, it. must be proved as a fact, so far as intent can be proved; which must be by the proof of other facts,—the character of the assault; the weapon used; the danger of producing death ; and the means .used to produce or avoid death. The jury was told, therefore, that if on the facts they were satisfied the prisoner as*510saulted Crammer intending to kill him, they ought to convict him of that aggravated offence; but if they were not satisfied on the proof that he intended to kill, they ought to acquit him of the felony, and find him guilty of the assault only, which was merely a misdemeanor.

The jury rendered a verdict of guilty, with intent to kill.