* Corpus Juris-Cyc References: Homicide, 30CJ, p. 20, n. 18; p. 22, n. 30; p. 319, n. 97. The appellant was convicted in the circuit court of Smith county on a charge of assault with intent to kill and murder, and was sentenced to the penitentiary for three years, and from this conviction and sentence this appeal was prosecuted.
The assault was alleged to have been committed upon Mrs. A.W. Ward, who lived with her husband about one mile from the home of the appellant and she is the only witness who testifies in regard to the facts of the alleged assault. She testified that, on the day the assault was alleged to have been committed, the appellant and his son passed her house three times within the space of about two hours; that they were traveling in a Ford car driven by the son, the appellant having a shot-gun in his hands; that on the third trip the driver of the car was next to the house, and the appellant was sitting by his side; that, when the car was in front of her house, the appellant directed his son to stop the car, and thereupon he pointed the gun over the steering wheel and arms of the driver at the witness, who was then standing on her front gallery near the door leading into the house; that she ran into the house and from there observed him for a few moments, and then took *Page 101 her small child and went out the back door and proceeded to the home of a neighbor; that the car was standing in the road about twenty feet from her at the time the appellant aimed the gun at her, and that he said nothing to her.
At the conclusion of all the testimony the court refused to grant a peremptory instruction to acquit the appellant of an assault with intent to kill and murder. We think the refusal of this instruction was error. It appears from the testimony that there was nothing to prevent the appellant from shooting the prosecuting witness if he had desired and intended to kill or murder her. An intent to kill or murder is the gist of this offense, and it is the intent with which an assault is committed that raises it from a misdemeanor to a felony. An intent to murder may not be inferred from the mere fact of the leveling of a gun, but, on the contrary, the fact that the appellant did not shoot, or attempt to shoot, when there was nothing to prevent, tends to negative the existence of such an intent. In discussing this question in the case of Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392, Judge CHALMERS said that:
"In a somewhat extensive examination of the books, we have found no case of a conviction of assault with intent to kill or murder, upon proof only of the leveling of a gun or pistol."
We are of the opinion that the testimony in this record is insufficient to sustain a conviction of assault with intent to kill and murder, and consequently the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded. *Page 102