Opinion
6 Div. 53.
June 16, 1970.
Appeal from the Circuit Court, Jefferson County, G. Rogers, Special Judge.
William T. Kominos, Birmingham, for appellant.
Instructions requested by a defendant, which require an acquittal of the felony, unless the jury finds from all the evidence in the case that he intended to take the life of the person alleged to have been assaulted, should always be given. Walls v. State, 90 Ala. 618-622, 8 So. 680. On a prosecution of assault with intent to commit murder, defendant is entitled to an instruction that the fact must raise the presumption of intent to murder, otherwise, there can be no conviction of assault with intent to murder. Horn v. State, 98 Ala. 23, 13 So. 329.
MacDonald Gallion, Atty. Gen., and George W. Hodges, Jr., Asst. Atty. Gen., for the State.
To convict for assault with intent to murder, state must prove that the assault was committed with intent to murder, but such intent may be inferred by the jury from the character of the assault, the use of a deadly weapon, and other attendant circumstances. Sparks v. State, 261 Ala. 2, 75 So.2d 103; Ray v. State, 147 Ala. 5, 41 So. 519.
The defendant was convicted of assaulting James Edward Gay with intent to murder him. He was sentenced to twelve years imprisonment.
The evidence is undisputed that defendant fired a pistol into the unmarked city police car in which Officer Gay, in plain clothes, was sitting. One shot went into the left front door and a second shot broke the window on the left side, about ten or twelve inches from the policeman's head.
The defendant introduced no evidence.
The sole argument in brief is that the court erred in refusing the following requested charges:
"1. I charge you, Ladies and Gentlemen of the Jury, that a specific felonious intent is an indispensable element of the offense of assault with intent to murder and if there was no intent to murder the person assaulted, even though there may have been a general felonious intent, then you cannot find the defendant guilty as charged in the indictment."
"2. I charge you, Ladies and Gentlemen of the Jury, that in order to find the defendant guilty as charged in the indictment, you must find, from the evidence, that he had presently formed the intent to take the life of another person."
These charges were properly refused for these reasons:
Charge 1, if not otherwise faulty, was not predicated on a belief from the evidence.
Charge 2, if otherwise proper, because the intent to take life is not directed against the person charged in the indictment. Walls v. State, 90 Ala. 618, 8 So. 680; Lawhon v. State, 41 Ala. App. 577, 141 So.2d 205.
Moreover, the applicable principles were adequately covered in the oral charge.
The judgment is affirmed.
Affirmed.