2 N.D. 510 | N.D. | 1892
The opinion of the court was delivered by
Edward Eallon, the plaintiff in error, was informed against, with one Howard, charging them with the crime of making an assault with a dangerous weapon, to-wit, a pistol, with intent to commit a felony, and the circumstances of the offense were charged in the following language: “That at said time and place, the said defendants, in and upon one Charley Curfman, did then and there unlawfully, feloniously, and with premeditated malice make an assault, and then and there, at and against him, the said Charley Curfman, did unlawfully and feloniously, and with premeditated malice, shoot a certain pistol, then and there loaded with gunpowder and a leaden ball, with the intent then and there upon and against him, the said Charley Curfman, to commit the crime of robbery.” Sections 6481, 6482, Comp. Laws, read as follows: “Bobbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. To constitute robbery, the force or fear must be employed either to obtain or to retain possession of the property or to prevent or overcome resistence to the taking. If employed merely as a means of escape, it does not constitute robbery.” The state may fairly claim that the evidence establishes the following facts: The assault occurred between 8 and 9 o’clock on the evening of October 29,1891, in the bright rays of an electric light, very near the west end of what is known as the “North Bridge” across the Bed river, in the city of Fargo. Curfman, the party assaulted, had started to go east across the bridge. Before reaching the bridge he passed the plaintiff in error, who
Counsel contends that, while the information charges that the shooting was done with intent to commit robbery, yet the evidence shows that the assault with intent to rob was a completed event before the shooting was done, and that the shooting was done for the purpose of facilitating the escape of the assailants, and, without claiming the evidence insufficient in the absence of proof of the shooting to establish the charge' of an assault with a dangerous weapon with intent to commit robbery, it is urged that, as the pleader saw fit to allege the particular circumstance and acts descriptive of the assault, the assault must be proven in the manner' and by the means alleged, or the variance will be fatal. This proposition is supported by the following authorities, among others: Greer v. State, 50 Ind. 267; Dennis v. State, 91 Ind. 291; Gray v. State, 11 Tex. App. 411; Withers v. State, 21 Tex. App. 210; State v. Newland, 7 Iowa, 242; State v. Vorey, 41 Minn. 134, 43 N. W. Rep. 324; Com. v. Richardson, 126 Mass. 34 — and is undoubtedly among the elementary principles of criminal procedure. The learned counsel for the state frankly admits the propo-' sition, but seeks to avoid its force by claiming that the jury were warranted in finding that when the shot was fired the assailanta
But another ruling is assigned as error, which may arise upon another trial, and hence it becomés proper for us to notice it. The state introduced as a witness one Fiest, who, against the objection of plaintiff in error, was permitted to testify that on the evening of the alleged assault, and only a very short time before the occurrence, he saw plaintiff in error and said. Howard on the same street and but a short distance from the place where the assault was made upon Mr. Curfman; that Howard pushed a revolver in his (witness’) face, and ordered him to get off the street. It is claimed that the state ought not to have been allowed to prove a distinct and collateral offense. It is often difficult to distinguish the effect of prejudice from the effect of proof. When a prisoner is on trial charged with a special offense, the proof of a commission by him of a distinctively collateral offense, or of any number of collateral offenses, whatever be their character, is, as a general rule, no proof whatever of the commission of the offense charged. Tet such proof would produce most damaging prejudice in the minds of
But, keeping this rule in view, we do not think the court .erred in admitting the testimoney of the witness Fiest. That testimony tended directly to establish the fact that the prisoner was in the immediate locality where the crime charged was alleged to have been committed, at or near the time of its commission. That fact might have been shown, however, without going to the extent of proving the assault upon the witness Fiest. But proof of such assault had a direct tendency to establish method and system in the conduct of the prisoner and Howard, and to explain the character and purpose of their further acts. If they contemplated a criminal enterprise, and were there for that purpose, they would naturally object to having witnesses to their conduct, and, if they drove the witness Fiest from the locality, the inference is legitimate and logical that they then contemplated a criminal enterprise. We think the testimony was proper, under State v. LaPage, supra; and see, also, Guthrie v. State, 16 Neb. 667, 21 N. W. Rep. 455; Kramer v. Com. 87 Pa. St. 299; Thayer v. Thayer, 101 Mass. 111. But for the error hereinbefore pointed out the district court is directed to set aside the judgment heretofore entered in this case, and proceed in a manner not inconsistent with this opinion. Reversed.