Fenwick v. State

Yellott, J., delivered the opinion of the Court. The appellant was convicted in the Circuit Court for Charles County of an assault with intent to murder, and the only question which seems to have come before this Court by regular procedure, is presented by the bill of exception, from which it appears that the State gave evidence tending to prove that the prisoner, the prosecuting witness and others, were in the yard of the prisoner’s house with an officer, who was about to take a hog from the prisoner under a writ of replevin sued out by the prosecuting witness ; that the prisoner left the yard for an axe, with which, as he returned, he struck the prosecuting witness; that before going for the axe, the prisoner said that the prosecuting witness should never take the hog away alive, or that he would kill the hog before it should be thus taken; The prisoner also gave evidence tending to prove that he struck the prosecuting witness with the axe to prevent said witness from shooting him, the prisoner. The prisoner was then asked: “ Eor what purpose did you go to get the axe ? ” the counsel for the defence stating that they wanted to show that the accused went to get the axe for the purpose of billing the hog. Upon objection by the State, the, Circuit Court refused to allow this inquiry to be answered, and the propriety of this ruling is the sole question presented by this record for determination.

The appellant was charged with having committed -an assault with intent to murder. The intent was therefore a material fact set forth in the indictment. It seems to be almost unnecessary to intimate, that if an assault is committed in hot blood, by sudden impulse, and without apparent premeditation, there can be no conviction on a count charging an assault with intent to murder. This is an elementary principle, recognized by all Courts, and enunciated by all writers on criminal jurisprudence.

Now if the prisoner went for the axe with an intent to kill the ²⁴¹ hog, he did not, at that particular time, have an intent to murder the prosecuting witness. It was therefore material to ascertain with what intent the party on trial went to procure the deadly weapon with which the assault was subsequently committed. Although evidence could, therefore, properly be offered for the purpose of showing the intent, it is manifest, that anterior to the enactment of the statutes conferring on parties the privilege of testifying in their own behalf, the only proof of intent was such as could be inferentially