concurrence">Rudkin, J.

(concurring) — By the same information the appellant was charged with the commission of two felonies; first, an assault with intent to murder, and, second, an assault with a deadly weapon with intent to inflict a bodily injury where no considerable provocation appeared. The court charged the jury in general terms that the intent was an essential element of the crime charged, and must be proved as a fact; that it might be proved by circumstantial as well as by direct evidence, and that every sane person is presumed to intend the natural and ordinary consequences of his voluntary act. The majority holds that the italicized portion of the charge referred only to the charge of an assault with intent to inflict a bodily injury, and that the charge is correct as applied to that crimei, thus distinguishing this case from the case of State v. Dolan, 17 Wash. 499, 50 Pac. 472, cited in the majority opinion.

I confess I am at a loss to know how the jury could understand that the above general statement of an abstract proposition of ‘law applied to the question of intent involved in the commission of one felony, but not in the other. I am at a still greater loss to know why the charge is correct as applied *251to one felony but not as to the other. If a sane man does not intend the natural and probable consequences of his voluntary act, when charged with an assault with intent to mnrder, because murder does not ensue; it would seem inevitably to follow that.a person charged with an assault with intent to inflict a bodily injury does not intend the natural and probable consequences of his voluntary act unless bodily injury ensues, and it would be manifest error for the court to assume in its charge to the jury that bodily injury did, in fact, ensue. I concur in the judgment of affirmance because I think the portion of the charge excepted to is a correct stater ment of a familiar proposition of law, and is applicable in every case where the question of intent is involved. In charging the jury in Commonwealth v. Webster, 5 Cush. 295, Shaw, C. J., said:

“This rule is founded on the plain and obvious principle, that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own acts.”

The supreme court of the United States, in commenting on an instruction in Allen v. United States, 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528, says:

“This is nothing more than a statement of the familiar proposition that every man is presumed to intend the natural and probable consequences of his own act. 1 Greenleaf on Evidence, § 18; Regina v. Jones, 9 C. & P. 258; Regina v. Hill, 8 C. & P. 274; Regina v. Beard, 8 C. & P. 143; People v. Herrick, 13 Wend. 87, 91.”

Greenleaf says, in the section cited:

“Thus, also, a sane man is conclusively presumed to contemplate the natural and probable consequences of his own acts; and therefore the intent to murder is conclusively inferred from the deliberate use of a deadly weapon.”

Why should the application of this familiar principle depend on something that transpires long after the commission of the crime ? I cast two men overboard in mid-ocean. The *252one snccnmbs; tbe other is rescued. I am prosecuted for the murder of the one; and intend the natural consequences of my act; but in the prosecution for an assault with intent to' murder the other, I do not intend the natural and probable consequences of my act, because; forsooth, he was rescued through no agency of mine. I shoot recklessly info a crowd and, by the same act, kill one person and dangerously wound another. I intend the natural consequences of my act as to the one, but not as to the other. Let us suppose in this case that the majority found that the court below did, in fact, charge the jury that the appellant intended the natural and probable consequences of his act on the charge of an assault with' intent to murder, and reversed the judgment for that error; and let us further suppose that the prosecuting witness has died in the meantime from the effect of his wounds, and that the charge against the appellant is changed from assault with intent to murder to a charge of murder. On the trial of the latter charge the court instructs the jury that a sane man intends the natural and probable consequences of his voluntary act, and this court affirms the judgment. It is thus established by two solemn judgments of this court that a man intends the natural and probable consequences of a certain act, and that he does not intend the natural and pjrobable consequences of the same act, and, in the opinion of the majority, both judgments are founded on correct legal principles.

In fact, the judgment in this case is affirmed solely because the majority concludes that the court below in one breath told the jury that the appellant was presumed to intend the natural and probable consequences of certain acts, and in the next breath told them exactly the contrary. I do not care to indulge in any such refinements, but vote for affirmance on the broad ground that the instruction excepted to embodies a correct statement of the law as to any or all of the crimes charged.

Root, J., concurs with Rudkin, J.

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