PERRY DAVIS, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Mitchell, J.:

The plaintiff in error was tried and convicted at the fall term of the Circuit Court, Suwannee county, 1887, for assault with intent to^ murder one Randall Farnell. The defendant moved for a new trial, which motion was overruled, and the case is now here upon writ of error from the order of the Circuit Court overruling said motion.

The only error assigned is that the court refused to grant a new trial.

The grounds of a motion for new trial are :

1st. The verdict is contrary to law.

2d. Contrary to charge of the court.

3d. The verdict is contrary to the evidence, and the weight of the evidence.

4th. The evidence is not sufficient to sustain the verdict.

There is nothing in the record to show what the charge of the Circuit Court was, and we understand that this ground of the motion is abandoned by the plaintiff in error. The other grounds of the motion may be considered together. The defendant was indicted under section 29, p. 354, McClellan’s Digest, which is as follows: “ Whoever assaults another with a deadly weapon, with a premeditated design to effect the death of the person assaulted, shall be deemed guilty of an assault with intent to murder, and upon conviction shall be punished by imprisonment in the State penitentiary not less than two years, and not more than seven, or by fine of not less than five hundred dollars.”

The indictment charges that on, &c., at, &e., the defendant, with force and arms in and upon one Randall Parnell, then and there being, an assault did make, and with a certain gun, a deadly weapon, then and there loaded and charged with gun powder and leaden bullets, which said gun the said Perry Davis, in his hands th^n and there had and held, with a premeditated design to effect the death of him, the said Randall'Farnell, did then and there present the said deadly weapon, to-wit: said gun at and against him, said Randall Farnell, with intent him, said Randall Farnell, then’and thereto kill and murder. * * * ”

To sustain the indictment the State introduced a number of witnesses who testified as to the facts and circumstances of said alleged assault, but we only' deem it necessary to give the substance of the evidence which tends to show that prior to said alleged assault there had been bad blood between the defendant and Randall Farnell, growing out of a prosecution instituted by Farnell against the defendant, accusing the defendant of poisoning his, -Farnell’s mare and colt. The case had been tried and the defendant acquitted. Shortly after said trial a lot of geese belonging to said Farnell died, and it was supposed that they too had been poisoned. The defendant and Farnell lived near each other and the geese, supposed to have been poisoned, were in a lane near the residences of said parties, and at the time of the alleged assault by the defendant, a crowd of persons had gathered around the dead geese and were making quite a noise. At this time the defendant was seen running from his own house towards where the crowd was with a double barreled shot gun in his hands, and when near the crowd — • .some witnesses say in ten'or fifteen yards, and others say in fifty yards — the defendant hallowed to the crowd and told them to get out of the way, that he intended to kill Farnell. The crowd scattered and the defendant presented his gun at Farnell, swearing that he would' shoot him, but that defendant did not shoot, and that no one prevented his shooting. That defendant was near enough to have shot Farnell, and that there was nothing between the parties which prevented the shooting. The witnesses all testify that they did not know whether the gun was loaded or not, and in fact there is nothing to show that it was loaded. There is some little conflict in the evidence as to the minor details of the difficulty,’but in the main the witnesses agree as to the facts stated above.

Now the question is, does this'evidence establish the guilt of the defendant ?

To warrant a conviction of assault with intent to murder, it was incumbent upon the State to prove every material .allegation of the indictment — that is, the assault with a loaded gun' — a deadly weapon, and that the assault was made with malice and from a premeditated design to effect the death of Randall Farnell. Does the evidence show these facts ? To constitute the offense it was necessary to show that if the defendant had killed Randall Farnell, such killing would have been murder in the first degree under our .statute, that is to say, that the killing would have been unlawful, and perpetrated from a premeditated designio effect the death of Farnell, or any human being. If all these facts were satisfactorily proved the defendant was guilty, but if they were not proved, the conviction was illegal. All the elements that enter into murder in the first degree are contained in an assault with intent to murder except the actual killing. In this case the defendant may have been actuated by malice, and it may be that he intended to kill Farnell but the evidence does not show it. There is nothing in the evidence that shows that the defendant, at the time of the difficulty, intended to kill Farnell, and where the intent was lacking there could be no assault with intent to murder, although an assault may have been made. To make out the charge it was necessary not only to show the assault but the intent also, as charged in the indictment, the intent being the very gist of the offense. The evidence shows most clearly that the defendant could have shot Farnell if he so desired, but as he did not shoot, this is the best evidence that he did not intend to do so. It was not incumbent upon the defendant to show that he did not intend to shoot Farnell, but it was the duty of the State to show, beyond all reasonable doubt, that the assault was made as charged, and that the defendant then intended to kill Farnell, otherwise the defendant was entitled to an acquittal upon the charge of assault with intent to murder. A man’s intentions are arrived at from his conduct, his-actions, and applying this rule to the defendant and judging him by his actions when he had an opportunity to shoot Farnell and did not do so, the conclusion is that he did not intend to murder him.

In our judgment the defendant was entitled to a new trial.

The courts, in their discretion, are reluctant to interfere and set aside the verdict of juries, as to the facts, yet when the verdict of a jury is clearly against the evidence it is as much the duty of the court to set aside the verdict as it is to refuse a new trial when the verdict is fully sustained by the evidence.

The judgment is reversed, and the case will be remanded for a new trial.