murder, to kill, to rob, to rape, to do great bodily harm, etc., the specific intent is essential. A person is not guilty of assault with intent to kill, for instance, unless he actually intends to kill.48 The fact that the killing would be murder is not enough, for there may be murder without any intent to kill.49 To constitute an assault with intent to murder, the specific intent is necessary.50 The circumstances must be such that, if death should result, the homicide would be murder,51 and, in addition to this, there must be the specific

48 State v. Reed, 40 Vt. 603; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Chrisman v. State, 54 Ark. 283, 26 Am. St. Rep. 44; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; and cases cited in the notes following.

It is not necessary to show that the killing would be murder. It is sufficient if it would be voluntary manslaughter. State v. Reed, supra; Hall V. State, 9 Fla. 203, 76 Am. Dec. 617; Ex parte Brown, 40 Fed. 81.

49 Post, § 242 et seq.

50 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; State v. White, 41 Iowa, 316, 20 Am. Rep. 602; Slatterly v. People, 58 N. Y. 354; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Hayes v. State, 14 Tex. App. 330.

51 Meredith v. State, 60 Ala. 441; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; McCormack v.

intent to murder.52 An assault is not assault with intent to murder if the actual killing would be manslaughter only.5:

53

A specific intent to rape is essential to an assault with intent to rape. To constitute rape the intercourse must, as a rule, be by force and against the will of the woman,5 and therefore a mar is not guilty of assault

54

State, 102 Ala. 156; State v. Connor, 59 Iowa, 357, 44 Am. Rep. 686; Slatterly v. People, 58 N. Y. 354; Rumsey v. People, 19 N. Y. 41; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; 6 Mich. 287; People v. Prague, Hopkinson v. People, 18 Ill. 264; Beckwith v. People, 26 Ill. Hamilton v. People, 113 Ill.

500;

People v. Scott, 72 Mich. 178;

34, 55 Am. Rep. 396; Elliott v. State, 46 Ga. 159; Hayes v. State, 14 Tex. App. 330; Wilson v. State, 4 Tex. App. 637; State v. Nichols, 8 Conn. 496. 52 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; People v. Mize, 80 Cal. 41.

One who points a pistol within shooting distance at another, who is attempting to stop his team, and threatens to shoot if he does not desist, is guilty of an assault, but not of assault with intent to murder. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392.

53 Beckwith v. People, 26 Ill. 500; State v. Connor, 59 Iowa, 357, 44 Am. Rep. 686; People v. Prague, 72 Mich. 178; Wilson v. State, 4 Tex. App. 637; and other cases cited in note 51, supra.

34 Post, § 293.

with intent to rape unless he intends to have connection by force and against her will.55

In some states the statute specifically punishes assault with intent to maim, or disable, or do great or grievous bodily harm, etc. Here, also, the specific intent is essential. In an English case a burglar was indicted under a statute for feloniously cutting and maiming a man with intent to maim and disable him. The jury found that he struck a watchman with a crowbar, and inflicted serious injuries, but that he did so with intent to produce a temporary disability until he could escape, and not a permanent disability. It was held that he could not properly be convicted.56 209. Assault with a Deadly Weapon.

In many states the statutes expressly punish as an aggravated assault an assault with a

55 Rex v. Lloyd, 7 Car. & P. 318; Com. v. Fields, 4 Leigh (Va.) 648; Com. v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336; State v. Kendall, 73 Iowa, 255, 5 Am. St. Rep. 679; Jones v. State, 90 Ala. 628, 24 Am. St. Rep. 22 Tex. App. 529, 58 Am. State, 32 Tex. Cr. R. 502; State v. Massey, 86 N.

850;

Taylor v. State,

Rep.

656; Shields v.

C. 658, 41 Am. Rep. 478; People v. Manchego, 80 Cal. 306.

56 Rex v. Boyce, 1 Mood. C. C. 29, Beale's Cas.

deadly or dangerous weapon.57 A deadly weapon is any weapon or instrument which is likely to cause death, when used as it is used in the particular case.58 A weapon capable of causing death is not necessarily deadly.59 When a weapon is clearly of such a character, or used in such a way, as to be likely to cause death, the court will take judicial notice that it is a deadly weapon, as in the case of a loaded pistol or gun,60 an axe,61 a hoe,62 brass knuckles,63 a club, a sledge hammer,65

etc.

64

When the weapon is not clearly of such a character, whether or not it was deadly under the particular circumstances must be left to the jury as a question of fact. Thus, it

57 See 2 Am. & Eng. Enc. Law (2d Ed.) 970 et seq., where the cases are collected.

58 Pittman v. State, 25 Fla. 648; People v. Rodrigo, 69 Cal. 601.

59 Pittman v. State, supra. But see People v. Rodrigo, supra.

60 U. S. v. Williams, 2 Fed. 61; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396.

61 State v. Shields, 110 N. C. 497.

62 Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396.

63 Wilks v. State, 3 Tex. App. 34. 64 State v. Phillips, 104 N. C. 786.

65 Philpot v. Com., 86 Ky. 595.

66

67

has been held to be for the jury to say whether the statute applied to an assault with a stone, a stick, a horseshoe,es a chain,69 a pistol used as a club,70 a pocket knife,"1 pocketknife,71 glass tumbler,72 etc.

210. Ability to Commit Intended Crime.

a

What has been said in a previous section as to the necessity for present ability to inflict the intended injury in order to constitute an assault, and the sufficiency of present apparent ability, is applicable to aggravated assaults as well as to common assaults.73 The question has also been considered in treating of attempts. We have seen that, by the weight of authority, a man may be guilty of an attempt to murder, or rob, etc., if there is an apparent physical ability to commit the intended murder or robbery, etc., but that it

66 State v. Jarrott, 1 Ired. (N. C.) 76.

67 State v. Dineen, 10 Minn. 407.

68 People v. Cavanagh, 62 How. Prac. (N. Y.) 187.

69 Kouns v. State, 3 Tex. App. 13.

70 Prior v. State, 41 Ga. 155.

71 Hilliard v. State, 17 Tex. App. 210; Sylvester

v. State, 71 Ala. 17.

72 Coney v. State, 2 Tex. App. 62.

73 Ante, § 206.