or circumstances showing that it is not well founded," especially where a specific intent is an essential element of the crime, or where the gravamen of the offense is the failure to obtain permission to do the act which, if the legal requirements had been complied with, would have been permissible.78 And some of the courts have held that it is not a presumption of law, but a presumption or inference of fact which may be drawn by the jury.74 It does not extend to all possible consequences of the act,75 and it has been held not to apply where the criminal intent is not accomplished,78 or where the act done fails of effect or is attended by no consequences.77 How far it applies where a specific intent is an essential element of the offense will be considered in a separate section.78

§ 94. Presumptions and inferences as to specific intent. Where a specific intent is an essential element of an offense, the existence of such an intent cannot be implied or inferred as a matter of law

71 State v. Grossheim, 79 Iowa 75, 44 N. W. 541; People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807, rev'g 57 Hun 83, 10 N. Y. Supp. 475; High v. State, 26 Tex. App. 545, 10 S. W. 238, 8 Am. St. Rep. 488; State v. Taylor, 57 W. Va. 228, 50 S. E. 247; State v. Sheppard, 49 W. Va. 582, 39 S. E. 676.

72 See § 94, infra.

73 As in the case of carrying a pistol without a license. Cosper v. State, 13 Ga. App. 301, 79 S. E. 94.

74 Cosper v. State, 13 Ga. App. 301, 79 S. E. 94; Com. v. Wiggins, 165 Ky. 73, 176 S. W. 946; State v. Hersom, 90 Me. 273, 38 Atl. 160; People v. Flack, 125 N. Y. 324, 26 N. E. 267, 11 L. R. A. 807, rev'g 57 Hun 83, 10 N. Y. Supp. 475.

It is a rule of logical probability from the usual course of events, rather than a conclusive legal presumption." McKnight v. United States, 115 Fed. 972.

75 People v. Munn, 65 Cal. 211, 3 Pac. 650; Com. v. Campbell, 7 Allen (89 Mass.) 541, 83 Am. Dec. 705. And see People v. Holmes, 118 Cal. 444, 50 Pac. 675.

A person is not presumed to have intended results which could have been anticipated only by a person of learning or experience in medical science. State v. Redfield, 73 Iowa 643, 35 N. W. 673.

The fact that great bodily harm was inflicted cannot be used as evidence of an intent to inflict such harm, unless the jury further find beyond a reasonable doubt that such was the natural and reasonable result following the use of such means as were actually employed by the defendant and the manner of their use. People v. Miller, 91 Mich. 639, 52 N. W. 65. 76 State v. Hersom, 90 Me. 273, 38 Atl. 160.

77 Davis v. State, 115 Ark. 566, 173 S. W. 829; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8.

So where a person throws a rock at another and misses him it will not be presumed, on a prosecution for assault, that he intended to miss him. State v. Hersom, 90 Me. 273, 38 Atl. 160.

78 See § 94, infra.

from the doing of the act, so as to throw the burden of negativing it upon the defendant, but it must be proved by the state as a matter of fact.79 The presumption that one intends the necessary or natural consequences of his voluntary acts is not conclusive in such cases, and may be rebutted.80 So where a specific intent to defraud is an essential element of an offense, it must be proved and cannot be inferred as a matter of law from the doing of the act, or the fact that it actually resulted in defrauding some one, even though that may appear to have been its natural consequence.81 The

79 United States. Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. 235; Hibbard V. United States, 172 Fed. 66, 18 Ann. Cas. 1040; McKnight v. United States, 115 Fed. 972.

Arkansas. Davis v. State, 115 Ark. 566, 173 S. W. 829; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8.

California. People v. Johnson, 106 Cal. 289, 39 Pac. 622; People v. Landman, 103 Cal. 577, 37 Pac. 518.

Delaware. State v. Jefferson, 3 Harr. 571.

Maine. State v. Gilman, 69 Me. 163, 31 Am. Rep. 257.

Michigan. Roberts v. People, 19

Mich. 401.

Missouri. State v. Patterson, 116 Mo. 505, 22 S. W. 696.

New York. People v. Plath, 100 N. Y. 590, 3 N. E. 790, 53 Am. Rep. 236; People v. Kathan, 136 App. Div. 303, 120 N. Y. Supp. 1096; People v. Hegeman, 57 Misc. 295, 107 N. Y. Supp. 261; Miller v. People, 5 Barb. 204.

Wyoming. Bryant v. State, 7 Wyo. 311, 51 Pac. 879, 56 Pac. 596.

And see the other cases cited in the following notes:

Even if the jury may find a specific intent to do great bodily injury to a person struck by an automobile, if they find that the machine was operated negligently or in violation of

law, it is error to instruct that they must do so. State v. Richardson, 179 Iowa 770, 162 N. W. 28, L. R. A. 1917 D 944.

80 United States. Agnew v. United States, 165 U. S. 36, 41 L. Ed. 624, 17 Sup. Ct. 235; McKnight v. United States, 115 Fed. 972.

Georgia. Cosper v. State, 13 Ga. App. 301, 79 S. E. 94.

Iowa. State v. Steinke, 185 Iowa 481, 170 N. W. 801; State v. Ockij, 165 Iowa 237, 145 N. W. 486.

Mississippi. Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1.

North Carolina. State v. Holmes, 120 N. C. 573, 26 S. E. 692.

Utah. People v. Robinson, 6 Utah 101, 21 Pac. 403.

81 This is true in prosecutions for using the mails with intent to defraud. Hibbard v. United States, 172 Fed. 66, 18 Ann. Cas. 1040; or for misappropriating or misapplying the funds of a national bank with intent to defraud the bank, McKnight v. United States, 115 Fed. 972; and in prosecutions for forgery, see § 577, infra.

In a prosecution for selling mortgaged property with intent to defraud, the intent cannot be inferred as a matter of law from the fact that the property was sold without the consent of the mortgagee, but the question is one for the jury. Com. v. Wiggins, 165 Ky. 73, 176 S. W. 946.

same rule applies in prosecutions for assault with intent to rob,82 or with intent to kill or murder,88 where the necessary intent cannot be presumed or implied as a matter of law from the acts done, but must be proved as a matter of fact, and its existence determined as a fact by the jury from all the facts and circumstances in evidence. For example, if an assault is committed by means and in a manner calculated to produce death, but death does not ensue, an intent to kill or murder does not arise as a necessary consequence of the assault, and will not be inferred from it as a matter of law, but the burden is on the state to prove the specific intent.84 But a specific intent may be inferred by the jury, as a matter of fact, from the circumstances of the case.85 And in determining whether or not it was present they may take into consideration the presumption that a person intends the natural or probable consequences of his voluntary acts.86 And according to some of the courts this

82 State v. Glovery, 10 Nev. 24.

83 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; People v. Mize, 80 Cal. 41, 22 Pac. 80; Keady v. People, 32 Colo. 57, 74 Pac. 892, 66 L. R. A. 353; State v. Jefferson, 3 Harr. (Del.) 571.

84 Williams v. State, 13 Ala. App. 133, 69 So. 376; Davis v. State, 115 Ark. 566, 173 S. W. 829; Roberts v. People, 19 Mich. 401; Bryant v. State, 7 Wyo. 311, 51 Pac. 879, 56 Pac. 596.

ensue.

So on a prosecution for assault with intent to kill, the necessary intent to kill will not be presumed as a matter of law from the mere use of a deadly weapon, where death does not Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; People v. Landman, 103 Cal. 577, 37 Pac. 518; Friederich v. People, 147 Ill. 310, 35 N. E. 472; State v. Gilman, 69 Me. 163, 31 Am. Rep. 257; Bryant v. State, 7 Wyo. 311, 51 Pac. 879, 56 Pac. 596.

It will not be presumed from the mere commission of an assault by leveling a pistol at another within shooting distance. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392; or from the fact that the accused shot the per

son assaulted, Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Davis v. State, 115 Ark. 566, 173 S. W. 829; or shot at the person assaulted with a loaded pistol, Roberts v. People, 19 Mich. 401.

85 See § 90, supra.

86 McKnight v. United States, 115 Fed. 972; State v. Richardson, 179 Iowa 770, 162 N. W. 28, L. R. A. 1917 D 944.

Proof of the nature of the act and its results constitutes circumstantial evidence from which the intent may be inferred in the light of all circumstances bearing on the crucial issue. Hibbard v. United States, 172 Fed. 66, 18 Ann. Cas. 1040.

In a prosecution for assault with intent to kill it is not improper to instruct the jury that there is such a presumption, since it is proper for them, in passing upon the question of intent, to consider all the circumstances, including the weapon used and the manner of its use. Hankins v. State, 103 Ark. 28, 145 S. W. 524; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44.

An intent to commit murder may be inferred by the jury from the use of

presumption or inference may of itself be sufficient evidence to warrant a finding of the existence of such intent.87 But other courts have held that a conviction cannot be based on the presumption alone.88 It has also been held that the presumption of intent arising from the doing of an unlawful act never extends beyond the actual consequences of the act done,89 and that where the intent which is an element of the crime charged relates to a greater crime than that accomplished, it is not presumed from the act done alone, and cannot be inferred by the jury from it; 90 and also that an in

ference of a specific intent must be based upon matters relevant to the existence of a specific intent.91

Some courts have held that there may be a conviction for assault with intent to kill, although the proof shows an intent to kill a person other than the one assaulted. And it has also been held that a person who shoots into a crowd may be convicted of an assault with intent to kill any person whom he hits.92

§ 95. Repentance and change of intent. Since a mere criminal intent unaccompanied by any overt act is not a crime,98 a person who intends to commit a crime is not guilty of any offense if he abandons his evil intention at any time before so much of the act is done as constitutes a crime.94 But if an act sufficient to consti

"If one person wilfully assaults another and inflicts upon him a dangerous wound, the jury would have a right to infer from the act that he intended to inflict a dangerous wound, or if one person wilfully assaults another and inflicts upon him a dangerous wound likely to cause death and death ensues therefrom, the jury have the right to infer from the act and its consequences that he intended to kill the person assaulted, but if a man assaults another and inflicts upon him a dangerous wound likely to cause death, but death does not ensue, the jury have no right to infer from the act alone that he intended to kill, because such was not the consequence of the act." State v. Davis, 72 Wash. 261, 130 Pac. 95. Quoted with approval in State v. Clark, 98 Wash. 81, 167 Pac. 84. And see to the same effect, White v. State, 13 Tex. App. 259; State v. Williams, 36 Wash. 143, 78 Pac. 780; State v. Dolan, 17 Wash. 499, 50 Pac. 472.

Intent in such cases is gathered from all the circumstances of the case, of which, in the example last given, the assault and wounding are only a part. State v. Clark, 98 Wash. 81, 167 Pac. 84; State v. Davis, 72 Wash. 261, 130 Pac. 95.

91 Hence an intent to inflict great bodily injury cannot be inferred from the fact that a person is struck and injured by an automobile while it is being driven negligently and in a manner which violates the law, where the driver did not see the person injured, or know that he had struck him. State v. Richardson, 179 Iowa 770, 162 N. W. 28, L. R. A. 1917 D 944.

92 See § 401, infra.
93 See § 5, supra.

94 Clements v. State, 50 Ala. 117; State v. Allen, 47 Conn. 121; Young v. State, 82 Ga. 752, 9 S. E. 1108; Stephens v. State, 107 Ind. 185, 8 N. E.

94.

So where an overt act is essential to constitute the crime of conspiracy, a conspirator may escape criminal responsibility by withdrawing from the conspiracy before any overt act is committed (see § 509, infra). And one cannot be convicted of an attempt to commit a crime if he abandons his evil purpose to commit it before a sufficient act has been done to constitute an attempt (see § 155, infra). Nor can a person be convicted as accessory to a crime or as principal in the second degree because of counseling or consenting to its commission, if he repented and countermanded the other