BEN DAVIS, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Taylor, J.:

The plaintiff in error, at the Pall term, 1894, of the Circuit Court of Suwannee county, was. indicted, tried and convicted of the crime of assault with intent to commit a felony punishable with death, to-wit: with intent to commit the crime of murder, and was sentenced to four years’ imprisonment in the penitentiary, and seeks here to reverse such judgment on writ of error. There are but two assignments of error, as follows:: 1st. That the court erred in overruling defendant’s, motion in arrest of judgment. 2d. That the-court, erred in overruling defendant’s motion for a new. trial. The motion in arrest of judgment was npon-the grounds: (1) That the indictment does not charge an offense under the law with sufficient certainty to warrant a judgment and sentence; and (2) that the verdict of the jury is not sufficient under the law to. warrant & judgment being entered on it. It is contended here, in maintenance of this assignment, that there is no such crime under our statute as an “assault with intent to murder,” and that, therefore, the indictment charged no offense; and that the verdict should have specified what degree of murder was intended to be committed by the assault; and that because it does not so specify, no sentence can be pronounced thereon. The indictment is framed under section 2403 Rev. Stats., that provides as follows: “Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punished by imprisonment in the State prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to am extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.’’ The language of this statute, though general, is very comprehensive, and includes all assaults made with intent to commit any felony Tcnown to our law that is perpetrable as the result of an assault on another. If the assault is made with the intent to commit any felony that is punishable by law with either -death or imprisonment for life, then the punishment is confinement in the State prison not to exceed twenty years; and it is necessary that the indictment in such cases, as does the one here, should allege specifically what felony was intended to be committed in making the assault.

Section 2380 Rev. Stats, subdivides the felony of murder into three degrees, and defines it as follows: "“The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death -of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree, and shall be punishable with death. When perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in the second degree, and shall be punished by imprisonment in the State prison for life. When perpetrated without any design to effect death, by a person engaged in the commission of any felony, other than arson, rape, robbery or burglary, it shall be murder in the third degree, and shall be punished by imprisonment in the State prison not exceeding twenty years.” From these definitions of the crime of murder in the three specified degrees, it will be observed that in the commission of the crime of murder in the third degree there can be no intent, as the line of distinction between it and the two other degrees is the absence of design or intent. The essence of the crime with which the defendant was charged is the intent with which the assault is committed. It follows as a corollary that there can be no such crime as an assault with intent to commit murder in the third degree, because the latter felony exists only where death has resulted from an act not intended to have that result. The law under which the defendant was indicted prescribes the same punishment for an assault when it is made with the intent to commit any felony for which the penalty is either death or imprisonment for life; therefore, if there can-be afiy such offense as an assault with intent to commit mnrder in the second degree, the punishment for such an assault is the same, under this statute, as it would be if the assault had been made with intent to commit murder in the first degree. There is, therefore, no necessity for any specification either in the indictment or in the verdict in such, cases, of the degree of murder that was intended to be committed by the assault made, as is-contended for 'under the second phase of this assignment. The indictment charges the offense fully in the language of the statute, and we think that both it and the verdict thereon were entirely sufficient, and there was no error in overruling the motion in arrest of judgment.

The second assignment of error, the refusal of the motion for new trial, we can not consider. The motion is based upon the grounds, that the verdict is contrary to law and the evidence, and because of alleged errors in the exclusion and admission of evidence, and because of alleged improper remarks by the court during the trial, and because of alleged errors in the instructions to the jury. There is no bill of exceptions in the record brought here, from which we can see what facts were put in evidence, or that any of the occurrences took place that are asserted in this motion for new trial, and in the absence of the testimony upon which the instructions complained of were predicated, we can not consider such instructions. Livingston vs. Cooper, 22 Fla., 292, text 296, and cases cited.

We find no error in the record, and the judgment of the Circuit Court is, therefore, affirmed.