Hamilton v. State

¶1concurring. While I do not think the charges complained of are in all respects accurate, yet in view of the prisoner’s statement that he intended “to get” both Howell and John Hamilton, the prosecutor, the judgment overruling the motion for a new trial should not be reversed. In all cases of assault with intent to kill there must be a specific intent to kill the person assaulted, and such an intent with reference to one person can not be presumed to have existed in reference to a bystander accidentally-struck. Where death ensues, an intent to kill is presumed from the *119bare fact of killing, but there is no such presumption where death does not result. The instructions complained of are not, in the abstract, in harmony with the foregoing views, but do not demand a new trial, in view of the prisoner’s admission- of an intent to assault Hamilton with a deadly weapon.