WAYNE ALBRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Albright was convicted of aggravated assault and appealed, arguing that an actual attempt to injure must be proven. The Florida District Court of Appeal held that aggravated assault requires only proof of a bare assault with a deadly weapon, not an actual attempt to carry out the assault.
The court held that aggravated assault does not require proof of an actual attempt to carry out the assault with a deadly weapon; it is sufficient to prove a bare assault with a deadly weapon.
“An intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward person of another, under such circumstances as create well-founded fear of imminent peril, coupled with apparent present ability to execute attempt, if not prevented.”
Black's definition of assault that the court adopted, establishing the elements required for aggravated assault conviction.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with and convicted of aggravated assault, which is defined as assault with a deadly weapon without intent to kill. The appellant…
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The appellant appeals a judgment and sentence entered upon a finding of guilty of the offense of aggravated assault.
Appellant’s main contention is that in order to find one guilty of an assault there must be an actual attempt to carry out the intent to inflict injury upon another. In support of this contention appellant cites Bailey v. State, 1918, 76 Fla. 230, 79 So. 639. The Bailey case cites as authority for its holding the case of Davis v. State, 25 Fla. 272, 5 So. 803 (Fla.1889).
In Davis, supra, the defendant was convicted of assault with intent to kill and in *888Bailey, supra, the defendant was convicted of assault with intent to commit manslaughter.
The appellant herein was convicted of aggravated assault, which is an assault with a deadly weapon without intent to kill. Fla.Stat. 784.04, F.S.A.
In Davis, supra, it was held:
“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 Far-nell if he so desired, but, as he did not shoot, this is the best evidence that he did not intend to do so. * * * A man’s intentions are arrived at from his conduct, — his action, — 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.”
Also, in Bailey it was necessary to show in addition to the assault the intent to commit manslaughter.
The law as laid down in both Davis and Bailey is to the effect that when it is necessary not only to show an assault but also to show an intent to kill or commit manslaughter that an attempt must be shown in order to prove the intent to kill or commit manslaughter.
This intent is not necessary to prove in order to convict a person of the crime of aggravated assault. Black defines “assault” as:
“An intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward person of another, under such circumstances as create well-founded fear of imminent peril, coupled with apparent present ability to execute attempt, if not prevented.” (emphasis ours)
We hold that in order to sustain a conviction of aggravated assault it is not necessary for the state to prove an actual attempt to carry out the assault with a deadly weapon but that it is sufficient to prove a bare assault upon another with a deadly weapon.
The appellant’s other points on appeal have been carefully considered and found to be without merit.
Affirmed.
PIERCE, Acting C. J., and MANN, J., concur.
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State v. White, 324 So. 2d 630 (Fla. 1975)…a well-founded fear in such other person that such violence is imminent.” Section 784.011(1), Fla.Stat. (Supp.1974). . See e. g., Munday v. State, 254 So. 2d 33 (3d DCA Fla.1971); Bass v. State, 232 So. 2d 25 (1st DCA 1970), and Albright v. State, 214 So. 2d 887 (2d DCA Fla.1968). . State v. Wilson, 276 So. 2d 45 (Fla.1973). . The crimes of battery and aggravated battery cover those situations where actual injury is inflicted. . Section 777.04, Fla.Stat. (Supp.1974). The penalties for attempted assault a…
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Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)…mple assault is committed by an unlawful offer to injure another with apparent present ability to effectuate the offer under circumstances creating a fear of imminent peril. Motley v. State, 155 Fla. 545, 20 So. 2d 798 (Fla.1945); Albright v. State, 214 So. 2d 887 (Fla.App.1968). There can be no question but that the appellant herein committed at least a simple assault. Aggravated assault differs from simple assault through the addition of one element — the use of a deadly weapon. McCullers v. State, 206 So.…
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Battle v. State, 292 So. 2d 594 (Fla. 2d DCA 1974)…mon law. Wharton, Criminal Law and Procedure, § 332; Black’s Law Dictionary; Florida Standard Jury Instructions in Criminal Cases, 2.05; 125 A.L.R. 602; Motley v. State (Fla.1945) 155 Fla. 545, 20 So. 2d 798; Albright v. State (Fla. 2nd D.C.A. 1968) 214 So. 2d 887; Bass v. State (Fla. 1st D.C.A.1970) 232 So. 2d 25; Munday v. State (Fla. 3rd D.C.A. 1971) 254 So. 2d 33; Wilson v. State (Fla. 4 D.C.A. 1972) 265 So. 2d 411; State v. Wilson, Fla., 276 So. 2d 45. This point should be laid to rest, and we believe t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ned Bailey v. State, 76 Fla. 230 (Fla. 1918)
- Davis v. State, 25 Fla. 272 (Fla. 1889)