The indictment is founded upon section 3106 Qf the Code, and is in accordance with the form which the Code provides for an indictment under that section. — Code, page 700, form No. 16. It alleges that the defendant, “unlawfully, and with malice aforethought, assaulted Stephen H. Tiller, with intent to murder him,” <fcc.
The offence alleged was not, at common law, a felony; but Under our code, it is a felony. — Code, sections 3071, 3106. A misdemeanor, to-wit, an assault, or assault and battery, is necessarily included in the offence with which the defendant is charged; and, according to our code, the defendant may be convicted' either of the misdemeanor, or of the felony.— Code, § 3601. But Stephen H. Tiller is the. person upon whom the offence, whether considered as a misdemeanor or as a felony, is alleged to have been committed; and it is very clear, that a threat of the defendant, made 'several hours •“previous to the fight” between Tiller and the defendant, in which the assault relied on for a conviction occurred, that he would kill James Mitchell, does not prove, or tend to prove, the offense alleged in the indictment. A threat of the defendant, made at a particular time, to kill a particular man, is .not legal evidence to prove that, at a subsequent time, he assaulted a different man, or that he intended to murder a different man. According to all the authorities that have come under our observation, the court below erred in permitting the State, to prove 'the threat of the defendant to kill Mitchell,- — it appearing that the threat ’was made several hours “previous to the fight” between the defendant and Tiller. — Rox v. Holt, 7 Car. & Payne, 518; Morgan v. The State of Mississippi, 13 Smedes & Marsh. 242; State v. Williamson, 16 Missouri Rep. 394; The State v. Curran, 18 Missouri Rep. 320; Johnston v. Br. Bk. at Montgomery, 7 Ala. R. 379; Oden v. Rippetoe, 4 Ala. R. 68; Morris v. The State, 8 Smedes & Marsh. 772; Dowling v. The State, 5 ib. 686; Patterson v. The State, 21 Ala. R. 571.
That error makes it-our duty tq reverse the judgment, and to remand the cause, although no other error may have been committed. But, as the questions raised by the charge of the court, and by its refusals to charge as asked by the defendant, *701will probably arise on another trial, we feel bound to express our opinion as to them..
In the consideration of the charge of the court, it is impor-i tant to bear in mind the nature and ingredients of the alleged offense. The-defendant is indicted not merely for what he has effected, but for what he intended to effect; not only for his act, but for the intent with which he did that act. “The charge against him is, that in consequence of a particular intent, reach-l ing beyond the act done, he has incurred a guilt beyond what-isy deducible merely from the act wrongfully performed.” — 1 Bish op’s Crim. Law, § 514. The act, if not accompanied by the particular intent, is simply a misdemeanor; but, if accompa- ¡ nied by the particular intent, it is, by statute, a felony. The \ particular intent is. essential to constitute the felony. The Í class to which this case belongs, is clearly distinguished from ' that class in which a general felonious intent is sufficient to^ constitute the offense. The doctrine of an intent in law, dif- ¡ ferent from the intent in fact, although applicable to the latter ; class, is not applicable to the former. And in such a case as jj the present, the defendant ought not to be convicted of the ; felony, unless his intent in fact was the • same that is laid in , the indictment. Whether he had that intent, at the. time of Í the alleged assault, is aqnestion-of fact for the jury to decide; * and in deciding that question, “ the jury ought to act upon \ those presumptions which are recognized by the law, so far as ■ they are applicable, and their own judgment and experience, • as applied to all the circumstances in evidence.” N _
The burthen of proving the intent, as well as the other facts1 which constitute the felony, is upon the State. The law presumes the defendant innocent of the felony, unless the whole evidence -in the case satisfies the jury that he made the assault with the particular intent alleged in the indictment. And in a case like this, any charge is erroneous, which selects from the mass of evidence in the case, a portion only of the facts disclosed by the testimony, and-declares that, if the facts thus selected are proved, “ the law presumes that the act was malicious,” and that “he intended to kill,” Such a charge takes' away from the defendant the presumption of innocence, upon / the selected facts only; whereas, according to law, that pre-/ sumption cannot be taken away, except by a conviction of his *702guilt produced on the minds of the jury by the whole evidence. Such a charge loses sight of the distinction, in a criminal case, ¿•between a prima facie case, and the changing of the burthen I of próof; and actually shifts the burthen of proof, by the effect i which it imputes to the selected facts. In this respect, if in no f other, the charge of the court in the present case violates the ' law. The last sentence of the charge does not cure that error; ' , because, by the hypothesis of the preceding part of the charge, the court had broken down the presumption of innocence, and ' shifted the burthen of proof before the last sentence of the charge , ■ referred the questions of malice and intent to the jury, upon • the whole evidence. In a-criminal case, the establishment of i a prima facie case does not, as in a civil case, take away from ■ ■ the defendant the presumption of innocence-, or change the • burthen of proof. A solid reason for the distinction is, the ( ^well known difference in the measure of proof in the two classes v of cases. In a civil case, the plaintiff is not required to prove, •beyond all reasonable doubt, the facts on which he relies for ' -'a recovery; and therefore, when he establishes a prima facie case, the burthen of proof is .thereby shifted, and the prima facie case so established entitles him to recover, unless it is destroyed by probf from the other party. But, in a criminal case, the State is required to prove,-beyond, all reasonable doubt, the facts which constitute the offense. The establishment, therefore, of a prima facie case merely, does not take away the presumption of innocence from the defendant, but leaves that presumption to operate, in connection with, or in aid of, ainy proofs offered by him to rebut or impair the prima facie case thus made out by the State. A circumstance, aided fy that presumption, may so far rebut or impair the prima facie : case, as to render a conviction upon it improper. — Commonwealth v. Kimball, 24 Pick. Rep. 336; Commonwealth v. Dana, 2 Metc. Rep. 340; 2 Starkie on Ev. (edition of 1826,) 738-744, title “Intention”; 1 Bishop’s Criminal Law, § 514, - and the cases cited in the notes to that section; Burns v. The State, 8 Ala. R. 313; Moore v. The State, 18 Ala. R. 532; Scitz v. The State, 23 Ala. R. 42; The State v. Jefferson, 3 Harrington’s Rep. 571; Reg. v. Cruse, 8 Car. & Payne, 541; Oliver v. The State, 17 Ala. R. 587, and authorities cited on page 597 in that case; Henry v. Patrick, 1 Dev. *703& Batt. R. 358; Best on Presumptions, 176, § 128; The State v. Ormond, 1 Dev. & Bat. 119; The State v. Will, a slave, ib. 121.
If the charges asked by the defendant had been given, they would have imposed upon the jury a duty which the law did not impose on them in this case — the duty of determining . whether the'defendant would have been guilty of murder in the first degree, if the death of Tiller had resulted from the assault. The inquiries of the jury should be confined to the issue in the case. The issue in this case was, whether the defendant unlawfully, and with malice aforethought, assaulted Tiller, with intent to murder him. The burthen of proof was on the State. If the defendant had asked the court to charge, that proof of an intent to kill merely, was not sufficient proof of the intent to murder; or that proof of an intent to wound, or maim merely, was not sufficient proof of the intent to murder, the charge should have been given. — The State v. Burns, 8 Ala. R. 313; Scitz v. The State, 23 Ala. R. 42; Moore v. The State, 18 Ala. R. 532, and other authorities cited supra. But the court was not bound, at the defendant’s request, to charge the jury, that they could not find the defendant guilty' of the felony, without first- coming to the conclusion that, if he had killed Tiller by the alleged assault, he would have been guilty of murder in the first degree, or of “a willful, deliberate, malicious, and premeditated killing.” No actual killing was •alleged, or proved, and the court was not therefore bound to charge anything as to an actual, killing. If the defendant made an unlawful assault on Tiller, with malice^ and with an actual intent to murder him, he is guilty of the felony; otherwise, he is not guilty of the felony.
For the error in admitting thé evidence of the threat to kill Mitchell, and the error in the charge of the court, the judgment is reversed, and the cause remanded. The usual order must be here entered, directing that the defendant be remanded to the custody of the proper officer in Chambers county, there to remain until discharged by due course of law; for which, see a precedent at the conclusion of the opinion in Spencer v. The State, 20 Ala. R. 24.