mistaken as to his exact location.25 And one may be convicted of assault with intent to kill by administering poison, where he intends. to kill and believes that he has administered enough poison for that purpose, although in fact the dose is not large enough to cause death.26 Proof of actual ability to inflict injury is not necessary to sustain a prosecution for assault with intent to rob, since robbery may be committed by intimidation as well by actual force, and intimidation may be accomplished as effectually by an apparent ability to inflict the menaced injury as by actual ability to inflict it. Hence such an assault may be committed with a pistol or gun which the accused knows is not loaded.27 § 424. Physical or mental incapacity. It has been held that a boy who, by reason of his age, is conclusively presumed to be physically incapable of committing rape, may be convicted of an assault with intent to commit rape,28 but the weight of authority is to the contrary. If the presumption of incapacity is a rebuttable one, it is generally held that he may be convicted if capacity is shown,30 but not otherwise.31 The same rule has been applied where there is a presumption of mental incapacity on account of youth. If the presumption is a rebuttable one, the defendant may be convicted of an assault with intent to commit rape if mental capacity is shown.32 tance of twenty steps may be convicted without a finding that the gun was capable of producing death at that distance. There is an apparent deadly potency in such a gun at that distance. Christian v. State, 133 Ala. 109, 32 So. 64. 25 As where one shoots through a roof intending to kill an officer who is there and within range, but misses him because he is at a different place on the roof than the accused supposed. People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165. 26 State v. Glover, 27 S. C. 602, 4 S. E. 564. 27 McNamara v. People, 24 Colo. 61, 48 Pac. 541. 28 Com. v. Green, 2 Pick. (Mass.) 380. As to the presumption of physical incapacity see § 111 et seq., supra. 29 Delaware. State v. Handy, 4 Harr. 566. Florida. McKinney v. State, 29 Fla. 565, 10 So. 732, 20 Am. St. Rep. 140. New York. People v. Randolph, 2 Park Cr. 213. North Carolina. State v. Sam, 60 N. C. 293. Virginia. Foster v. Com., 96 Va. 306, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. Rep. 846. 30 Davidson v. Com., 20 Ky. L. Rep. 540, 47 S. W. 213; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536. 31 Bird v. State, 110 Ga. 315, 35 S. E. 156; Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. Rep. 189; State v. Fisk, 15 N. D. 589, 108 N. W. 485, 11 Ann. Cas. 1061. 32 Davidson v. Com., 20 Ky. L. Rep. 540, 47 S. W. 213. Impotency is not a defense to a charge of assault with intent to commit rape.33 The effect of drunkenness 34 or insanity 35 in cases of aggravated assault is considered in other sections. § 425. Injury to person not intended. Some courts hold that there may be a conviction for an assault with intent to kill or murder,36 or to do great bodily harm, although the proof shows As to the presumptions in such cases see § 107 et seq., supra. 33 Hunt v. State, 114 Ark. 239, 169 S. W. 773, L. R. A. 1915 B 131, Ann. Cas. 1916 D 533; Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; State v. Bartlett, 127 Iowa 689, 104 N. W. 285; Com. v. Green, 2 Pick. (Mass.) 380. If known to the defendant proof of it might be admissible on the question of intent. Territory v. Keyes, 5 Dak. 244, 38 N. W. 440. Compare Nugent v. State, 18 Ala. 521, where it was held that the fact that one accused of abusing a child in an attempt to carnally know her was, at the time when the offense was alleged to have been committed, greatly weakened and debilitated from drink, was a circumstance to be considered by the jury on the question of his physical capacity to commit the crime. And see Jeffers v. State, 10 Ohio C. D. 832. 34 See § 129 et seq., supra. 35 See § 113 et seq., supra. 36 Alabama. Rowlan v. State, 14 Ala. App. 17, 70 So. 953. In Bush v. State, 136 Ala. 85, 33 So. 878, it was held that a requested charge that the jury must acquit if they believed that the defendant merely fired the shot recklessly and did not intend to shoot the defendant was palpably faulty and misleading, and was properly refused. In Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, it is said that there cannot be a conviction if the intent was to murder another, and that the doctrine of an intent in law different from the intent in fact has no application in such cases. Illinois. Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686. Kentucky. Caperton v. Com., 189 Ky. 652, 225 S. W. 481. Louisiana. Where the statute does not require an intent to kill the person shot at, and the indictment does not, and is not required to charge an intent to murder the person hit, but merely an intent to commit murder generally. State v. Thomas, 127 La. 576, 53 So. 868, 37 L. R. A. (N. S.) 172, Ann. Cas. 1912 A 1059. Maine. State v. Gilman, 69 Me. 163, 31 Am. Rep. 257. New Jersey. State v. Gallagher, 83 N. J. L. 321, 85 Atl. 207. New York. A conviction may be had under the New York statute providing that "a person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, assaults another with a loaded firearm," etc., is guilty of assault in the first degree, where it appears that the defendant shot at and intended to kill a person other than the one whom he hit. A variance between the allegations and the proof as to the person whom the defendant intended to kill is immaterial and will be disregarded, since it could have been cured by a summary amendment under the statute. People v. Castaldo, 146 App. Div. 767, 131 N. Y. Supp. an intent to kill or injure a person other than the one actually assaulted, as where a person shoots or strikes at one person and hits another.37 Other courts hold, that there must be an intent to kill or injure the particular person alleged to have been assaulted, and that a person who shoots or strikes at one person and hits another cannot be convicted of an assault with intent to kill,38 or to do great bodily harm to 39 the person actually hit. There is a similar conflict of authority as to the responsibility in this respect of a person who shoots into a crowd. Some of the courts hold that he may be convicted of an assault with intent to kill 40 545. The contrary was held to be true under an earlier statute, making it an offense to shoot at or assault another with intent to kill "such other person." Hollywood v. People, 42 N. Y. 55. Ohio. Even under a statute mak ing it an offense to maliciously shoot any other person "with intent to kill, wound or maim such person, "" a conviction may be had where a shot discharged at one person injures another, who is at the time known to be in such position or proximity that his injury may be reasonably apprehended as a probable consequence of the act. Callahan v. State, 21 Ohio St. 306. Texas. This is true under the Texas statute, which does not restrict the intent to kill to the person assaulted. Vining v. State, 66 Tex. Cr. 316, 146 S. W. 909; Ward v. State, 63 Tex. Cr. 194, 140 S. W. 1109; Smith v. State (Tex. Cr.), 95 S. W. 1057; Mathis v. State, 39 Tex. Cr. 549, 47 S. W. 464. West Virginia. State v. Meadows, 18 W. Va. 658. 37 People v. Hodges, 196 Mich. 546, 162 N. W. 966. 38 Arkansas. Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8. Delaware. State v. Hill, 2 Boyce 537, 82 Atl. 221. Kentucky. Under a statute making it an offense to "shoot at and wound another with an intention to kill Utah. People v. Robinson, 6 Utah 101, 21 Pac. 403. And see State v. Potello, 42 Utah 396, 132 Pac. 14. 39 People v. Keefer, 18 Cal. 636. 40 Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686; Walker v. State, 8 Ind. 290; State v. Hamilton, 170 Mo. 377, 70 S. W. 876. Where he shoots into a crowd, with the intention of killing some one of them, and not knowing or caring which one. Jennings v. United States, 2 Ind. Terr. 670, 53 S. W. 456; Phillips v. United States, 2 Okla. Cr. 628, 103 Pac. 861; Williams v. State, 77 Tex. Cr. 563, 179 S. W. 710; or after threatening to kill all those present. Vining v. State, 66 Tex. Cr. 316, 146 S. W. 909. or with intent to do great bodily harm to 41 any person whom he hits, while others hold to the contrary.42 The fact that the accused was mistaken as to the identity of his victim will not prevent his conviction for an assault with intent to kill or murder, 48 or to maim and disfigure,44 as where he assaults one person under the mistaken belief that he is some one else. And it has been held that one who voluntarily discharges a gun with intent to kill any person who may be in the way of the shot, may be convicted of an assault with intent to kill the person whom he hits; 45 and that a person who shoots at two persons with intent to kill both, or entirely regardless of which he may kill, may be convicted of an assault with intent to kill both.46 An indictment or information alleging that defendant assaulted a named person with intent to inflict bodily injury upon another named person is bad.47 § 426. Wounding-In general. Statutes in some of the states, in varying terms, make it an offense to wilfully or wrongfully wound or 41 State v. Myers, 19 Iowa 517. If one shoots into a crowd with intent to wound any of them, he may be convicted of an assault with intent to do great bodily harm, though he had no specific intent to assault the person hit. People v. Hodges, 196 Mich. 546, 162 N. W. 966; People v. Raher, 92 Mich. 165, 52 N. W. 625, 31 Am. St. Rep. 575. 42 Where the prosecution is under a statute making it an offense to shoot at another "with intent to kill such other person." Morgan v. State, 13 Smedes & M. (Miss.) 242. Proof that defendant shot into a crowd of which the person alleged to have been assaulted was one is not sufficient. Scott v. State, 49 Ark. 156, 4 S. W. 750. A charge of assault with intent to murder a named person with a rock is not sustained by proof that the accused threw a rock into a street car in which such person and a number of others were riding, it not appearing that accused knew such person, or any of the other passengers, or that he intended to hit any particular person in the car. Bray v. State, 118 Ga. 786, 45 S. E. 597. 48 California. People v. Torres, 38 Cal. 141. And see People v. Wells, 145 Cal. 138, 78 Pac. 470. Mississippi. McGehee v. State, 62 Ohio. Callahan v. State, 21 Ohio Texas. Olds v. State, 54 Tex. Cr. 411, 113 S. W. 272. Contra, Rex v. Holt, 7 Car. & P. 518; Reg. v. Ryan, 2 Moody & R. 213. 44 State v. Costa, 95 Conn. 140, 110 Atl. 875. 45 Darity v. State, 38 Tex. Cr. 546, 43 S. W. 982. 46 Com. v. McLaughlin, 12 Cush. (Mass.) 615. 47 People v. Stoyan, 280 Ill. 300, 117 N. E. 464; State v. Potello, 42 Utah 396, 132 Pac. 14. 48 inflict grievous bodily harm upon another, either with or without a weapon, or to inflict a wound less than mayhem,49 or to maim, wound, disfigure, or inflict great bodily harm upon another under such circumstances as would constitute murder or manslaughter if death had ensued,50 or to maliciously shoot and wound another,51 or to shoot, stab, cut or wound any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable or kill,52 or, being armed with a dangerous weapon to strike or wound another while robbing him,58 A wound, within the meaning of provisions of this character, is an injury to the person by which the skin is broken,54 and it has been held that a solution or fracture of an inner lining of any portion of the body constitutes a wound.55 A slight scratch on the face, which 48 State v. Broadbent, 19 Mont. 467, 48 Pac. 775. 49 State v. McTier, 45 La. Ann. 440, 12 So. 516. 50 State v. Countryman, 57 Kan. 815, 48 Pac. 137; State v. Smith, 57 Kan. 673, 47 Pac. 541; State v. Ivy, - Mo.-, 192 S. W. 737; State v. Janke, 238 Mo. 378, 141 S. W. 1136; State v. Bidstrup, 237 Mo. 273, 140 S. W. 904; State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73; State v. Bohannon, 21 Mo. 490; State v. Bailey, 21 Mo. 484. Either maiming, wounding or disfiguring may by itself constitute an offense under such a provision, or all of them together may constitute a single offense of wounding and disfiguring. State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73. 51 Rose v. Com., 181 Ky. 337, 205 S. W. 326. It is not necessary to commit the act feloniously under the Kentucky statute. Gregory v. Com., 187 Ky. 188, 218 S. W. 999. 52 State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965; State v. Davis, 58 W. Va. 94, 51 S. E. 230; State v. Harr, 38 W. Va. 58, 17 S. E. 794. 53 Com. V. Gallagher, 6 Metc. (Mass.) 565. 54 State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73; State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965; Rex. v. Wood, 4 Car. & P. 381. Proof that the person assaulted had a scar from the injury a year after it was inflicted sufficiently shows that there was a wound. State v. Leonard, 22 Mo. 449. 55 As where a person strikes another on the jaw and the skin is broken internally, Reg. v. Smith, 8 Car. & P. 173; or where a person kicks another and thereby causes a rupture of the lining membrane of the urethra, followed by a flow of blood. Reg. v. Waltham, 3 Cox C. C. |