¶1The plaintiff in error was tried and convicted, of an assault with'intent to commit murder. On the trial, below, the prisoner’s counsel asked the court to charge the jury that they could not find the prisoner guilty, unless they found that he had in his mind at the time of the commission of the assault a positive intention to commit murder.
¶2This charge we think the court very properly refused, as it was well calculated to mislead the jury. The statute does not use the word positive as qualifying the intent, and in so far as it may be construed to mean an express intent, as contradistinguished from an intent implied or infered from the circumstances of the case, by so much would it be erroneous.
¶3But we are not allowed to entertain a doubt that the court entirely mistook the law, when it charged “ that the same facts and circumstances, which would make the offence murder, if death ensued, furnish sufficient evidence of the intention.”
¶4There are a number of cases, where a killing would amount to murder, and yet the party did not intend to kill. — 1 Russ. on Crimes, 438, 453-5. As if one from a house top recklessly throw down a billet of wood upon the side-walk where persons are constantly passing, and it fall upon a person passing by and kill him, this would be, by the common law, murder; but if instead of killing him, it inflicts only a slight injury, the party could not be convicted of an assault with intent to commit murder. But the point is too clear to require argument or authority. This charge being affirmative, and erroneous as a proposition of law, must reverse the case, as we must intend that it was not abstract. Let the judgment be reversed and the cause remanded.