I concur in the opinion of, as well as the conclusion reached, by Mr. Justice DAVIS that the judgment of conviction in this case should be reversed, but in regard to the question of "intent to kill," as an element of the offense of assault with intent to commit manslaughter, which is not referred to in the opinion, but is discussed in a footnote thereto, I think some further comments might well be made upon what is said in the opinion of Mr. Justice BUFORD.

The question thus raised is complicated and made difficult by reason of the fact that under our statute the crime of manslaughter may be committed where there is no intent to kill whatever, such as cases where the death of the person killed is caused by "culpable negligence" of the accused. *Page 154 In this class of cases, I do not see how any one could be convicted of the crime of assault with intent to commit manslaughter, because the element of intent need not be present at all in the crime itself. On the other hand, there is a class of cases where the intent to kill is an element of the crime of manslaughter. The crime of assault with intent to commit manslaughter has reference to manslaughter of this latter type, and may be sustained by evidence showing an unlawful assault with the intent to kill, though without premeditated design. Then there are certain special statutory kinds of manslaughter, defined by Sections 7146-7149, C. G. L., from which the intent to kill is either expressly or impliedly excluded.

At common law manslaughter consisted in the unlawful killing of another without malice either express or implied. It was commonly divided into voluntary and involuntary manslaughter. Voluntary manslaughter was the intentional killing of another in a sudden heat of passion due to adequate provocation, and not with malice. Involuntary manslaughter consisted in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself. At common law there was no such offense as assault with intent to commit manslaughter.

Our general statute on the subject of manslaughter, Section 7141, C. G. L., appears to cover, in substance, both voluntary and involuntary manslaughter as they existed at common law, and reads as follows:

"The killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide or murder, according to the provisions of this Article, shall be deemed *Page 155 manslaughter, and shall be punished by imprisonment in the State prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars."

We also have a Section 7165 C. G. L., which deals with assaults with intent to commit felonies punishable with death or by imprisonment for life, but which is not pertinent here.

In 30 C. J., on pages 27-28, it is said:

"To constitute the minor statutory offense of assault with intent to kill or to commit manslaughter the assault must have been made under circumstances which would have made the act manslaughter, or murder in the second degree, if death had ensued. An assault with intent to kill lacks the element of malice necessary to constitute assault with intent to murder, or, as it is said, the offense may be committed without malice.The gist of the offense is the intent to kill. It is sufficient that the crime would have been voluntary manslaughter had death ensued from the assault, but if the crime would have been involuntary manslaughter had death ensued it is insufficient. To constitute the offense of assault with intent to commit manslaughter, the homicide, if accomplished, must have amounted to voluntary manslaughter. Some statutes require that in addition to the intent to commit manslaughter upon the person of the party assailed, the assault must be made with a deadly weapon." (Italics supplied.)

In Newborn v. State, 73 Fla. 1064, 75 So. 2d 581, cited in the opinion of Mr. Justice DAVIS, this court said:

"To constitute the crime of assault with intent to commit manslaughter with a deadly weapon there must concur with the use of a deadly weapon, to take the offense out of the category of an aggravated assault, which is a misdemeanor, *Page 156 the further element of an intent to commit manslaughter upon the person of the assaulted party. Johnson v. State, 53 Fla. 45, 43 So. 2d 779; Griffin v. State, 72 Fla. 79, 72 So. 2d 475."

In the case of Teagle v. State, 55 Fla. 13, 46 So. 2d 182, the second and third headnotes read as follows:

"2. Whoever unlawfully assaults another with an intention to kill him but not from a premeditated design to effect his death, and the assault is accompanied by an act imminently dangerous to another and evincing a depraved mind regardless of human life, is guilty of an assault with an intent to commit murder in the second degree."

"3. If an assault be committed unlawfully and with an intentto take life, but not from a premeditated design to take life, and not by any act imminently dangerous to another and evincing a depraved mind regardless of human life, it would be an assault with an intent to commit manslaughter." (Italics supplied.)

It therefore appears that in a case of the kind now under consideration an intent to kill is an essential element of an assault with intent to commit manslaughter.

It has been held in several states that there can be no such offense as an assault with intent to commit involuntary manslaughter. No cases to the contrary are cited. See 30 C. J. 27, and cases cited. And this Court has held that there is no such offense as an assault with intent to commit murder in the third degree, because the presence of an intent precludes the commission of that offense. Tillman v. State, 81 Fla. 558,88 So. 2d 377.

In the case of Lassiter v. State, 98 Fla. 370, 123 So. 2d 735, the opinion shows that "the evidence was amply sufficient to have sustained a verdict of an assault with intent to commit a higher offense than manslaughter." So the evidence *Page 157 did not raise the exact question here discussed, and the rather broad definition therein given of assault with intent to commit manslaughter might well be read in the light of the facts in that case. Of course, the intent may be proven by circumstances and the jury might infer the intent to kill from an intentional assault of a nature which would naturally, or probably, produce death, and where, if death had ensued, the accused would have been guilty of manslaughter. But I agree with Mr. Justice DAVIS that the intent to kill must be proved, either by direct or circumstantial evidence, beyond a reasonable doubt, before a defendant can be lawfully convicted of the offense of assault with the intent to commit manslaughter.