For a defendant to be guilty of any degree of assault it is, of course, necessary that he intend to injure the one assaulted. If it were necessary for the court, to charge that in order to convict the defendant of assault in the second degree the People were required to prove a specific intent to inflict grievousbodily harm upon the one assaulted, we would agree that the court erred in its charge to the jurors when they returned for instructions. We do not think it was necessary so to charge. The statute (Penal Law, § 242) reads, insofar as important for our discussion here:
"A person who, under circumstances not amounting to the crime specified in section two hundred and forty,
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"3. Wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or,
"4. Wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or, * * *."
This is a matter of statutory construction and the statute alone defines the crime. There are five subdivisions to section 242. In each of three of the subdivisions, other than subdivisions three and four, a specific intent is required. Two of those three begin with the words "With intent." The other subdivision, the fifth, uses those same two words as the third and fourth words in the sentence which comprises it. We think that the words used by the Legislature were carefully chosen in order to express exactly what was intended. No specific intent was required in subdivisions three and four because subdivision three was intended to cover an act of assault by which "grievous *Page 367 bodily harm upon another, either with or without a weapon" was accomplished, whether or not specifically intended while subdivision four was intended to cover an act of assault committed against "another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm"whether or not grievous bodily harm resulted. In other words under subdivision three the determinant was the grievous injury; under subdivision four, the determinant was the use of a weapon, or other instrument or thing likely to produce grievous bodily harm.
Statutes making the aggravated character of the assault to depend upon the character of the injury inflicted are found in many states. See 6 C.J.S. Assault and Battery, section 79. Thus in State v. Damuth (135 Minn. 76 at 79, 80) it was said:
"It was not necessary to a conviction for assault in the second degree that the defendant in striking the blow should have the specific intent to put out Nagel's eye. It is sufficient, under the language of the statute, if he wilfully and wrongfully struck the blow. `It would be a mistake to suppose that in order that an act may amount to a crime the offender must intend to commit the crime to which his act amounts, but he must in all cases intend to do the act which constitutes the crime.' 2 Stephens, Hist. Crim. Law, 112, quoted in State v. Quackenbush, 98 Minn. 515,521, 108 N.W. 953.
"So it was sufficient to a conviction that Lind Damuth wrongfully intended to strike the blow which blinded Nagel, although he had no intent to put out his eye. The word `wilfully' means `designedly' or `intentionally.' State v. Lehman,131 Minn. 427, 155 N.W. 399. If the act was intentionally done, the defendant could be convicted of assault in the second degree, though he did not intend all the consequences of the act. If Damuth was the aggressor, the act was wilful and wrongful; if he was not the aggressor, he was, under the evidence and the law as laid down by the court, guilty if [sic] no crime.
"It is argued that the affray in which Nagel was injured was only a fist fight, that defendant did not intend to inflict grievous bodily harm, and that consequently he was guilty of assault in the third degree only.
"But it cannot be conceded that grievous bodily harm can be inflicted only by means of a weapon. Men have been killed with *Page 368 the bare hands or by blows from the naked fist. Grievous bodily harm may result from an assault although the assailant be unarmed. Recognizing this, the statute (G.S. 1913, § 8632, subd. 3), punishes as for assault in the second degree, one who wilfully and wrongfully inflicts bodily harm, even without a weapon. The grievous bodily harm, resulting from the assault and battery in this case, justified the instruction that the jury might convict of assault in the second degree. The evidence also justified the court in charging the jury that they could convict defendant of the offense charged, or of assault in the second degree, or find him not guilty. State v. Ronk, 91 Minn. 419,98 N.W. 334; State v. Pontoniec, supra."
It seems to us that the Legislature intended that one who wounds or inflicts grievous bodily harm upon another must answer for the result of his act. He is the one who must run the risk. He may avoid that risk by not committing the assault. If he commit the assault it must in law be said that among the consequences of his criminal act which were within his contemplation and for which he is to be held responsible is that such grievous bodily harm may be wrought by him that he will be a felon before the law. This is nothing new in the law. The cases, beginning with one in the reign of Charles II, on the consequences which a guilty person must be deemed to have had in contemplation when he acted, in cases resulting in death, will be found collected in People v. Kane (WILLARD BARTLETT, Ch. J.), (213 N.Y. 260, 271-277).
The original charge of the court was more favorable to the defendant than was required. The instructions given to the jurors upon their later request were correct.
The judgment should be affirmed.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY and LEWIS, JJ., concur with FINCH, J.; CONWAY, J., dissents in opinion in which DESMOND, J., concurs.
Judgments reversed, etc. *Page 369