By common law an assualt to commit a felony is only a misdemeanor.23

But by statutes the common law has been modified in perhaps nearly all of the states, making such an assault a felony.

In this class of cases the specific intent is the gist of the offense. Thus in assault with intent to commit murder, the intent is the gist of the offense, and it must be such an assault that if death ensue the crime would be murder. All of the ingredients of murder, except the killing, enter into and are necessary to constitute the crime of assault with intent to commit murder.24

18 111. R. S. of 1905, Chap. 38, Sec.

25; 2 Am. & Eng. Ency. Law, 970 (2nd Ed.). 19 Hughes Cr. Law, Sec. 184; 2 Am.

& Eng. Ency. Law, 971 (2nd Ed.).

20 Hughes Cr. Law, Sec. 185-186.

21 Hughes Cr. Law, Sec. 188; 2 Am. & Eng. Ency. Law, 972 (2nd Ed.).

22 People vs. Page, 66 Cal., 366.

23 Kennedy vs. People, 122 111., 656.

It does not follow that an assault made by lying in wait was made for the purpose of committing murder, merely because a wilful murder committed by lying in wait is a deliberate and premeditated murder of the first degree.25

If the killing is only manslaughter, then the accused could not be guilty of an assault with the intent to commit murder, but only of simple assault and battery.26

Homicide.

Homicide is not the name of any crime, but a general term only, comprehending or including any killing of a human being, whether the act be committed criminally or otherwise.

Homicide includes murder, manslaughter, justifiable or excusable killing or self defense; also death from suicide and accident.