173 Iowa 643 | Iowa | 1915
“Q. You were trying to sneak the money from under his pillow without waking him up? A. Yes, sir. Q. And just the minute he waked up you took to your heels? A. Yes, sir. '. . . Q. Did you have any intention at the time to get something if you had to take it away by force? A. No, I don’t believe I did. Q. What were you doing with the gun and billy? A. Just a bluff. Q. Your object was to scare? A. The gun was there for a bluff. I was to get the money without waking him.', Q. I will ask you whether or not you did have any intention of scaring the money out of Mr. Dunlevy? A. We went in there and when we seen he was asleep, that is the way that we were going to get the money. I had no — the gun was for a bluff. Q. For a bluff to whom ? A. To Dunlevy if he attacked me.”
Cox testified:
“When we went in there, Tropp went in to hit him and get the money. Q. Do you know what Harold’s intention was? A. He intended to hit Mm. Q. He had a pocket billy and a revolver? A. Yes, sir. Q. He said his intention was to get the man’s money ? A. Yes, sir. ”
"If any person assault another with intent to . rob, steal ... he shall be ’ ’ punished as prescribed. Sec. 4770, Code.
Bobbery differs from larceny from the person in that the taking in the former must be by force or intimidation; while in the latter, this is not necessary. State v. Miller, 83 Iowa 291. Larceny from the person is included in the crime of robbery. State v. Reasby, 100 Iowa 231. And this being so, assault with intent to steal also is included within the offense charged in the indictment. The evidence leaves no doubt that Tropp slipped stealthily into the room to the head of the cot, with the design of stealing money from beneath Dunlevy’s pillow. But this alone would not be enough to constitute the crime charged; there must have been an assault. This has been defined often, but ordinarily with reference to the facts under consideration. The definition found in 3 Cyc. 1020, seems comprehensive and accurate:
"An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” State v. Cody, 94 Iowa 169; Tarver v. State, 43 Ala. 354; People v. Lilley, 43 Mich. 521. •
It has been described as inchoate violence with the person
The mere fact that the attempt or endeavor to do violence is connected with a condition will not shield the accused.
“There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword pr bayonet, or even laying one’s hand upon his sword, would be sufficient.”
It was said in State v. Smith, 80 Mo. 516, that “An assault with intent may exist without the 'actual attempt. Regina v. Dungey, 4 F. & F. 102, and note. There need not be a direct attempt at violence, but indirect preparatipn toward it will, in certain circumstances, constitute an assault”; citing treatises and the above case, with Carter v. State, 35 Ga. 263.
Advancing upon another with open knife, using violent and menacing expressions, was held to constitute an assault, in State v. Shipman, 81 N. C. 513: Four persons with pitch: forks and guns on their shoulders, following another and using threatening and insulting language which put him in fear and induced him to go home, even though not nearer
‘ ‘ The law has not established, as a criterion in determining an attempt, that the gun must be presented or aimed, or the lock pulled back, or triggers of a rifle sprung, or any other stage in the series of acts that may be performed in committing an assault. It is sufficient that there be an act done indicating an intention to commit a battery, immediately coupled with the ability to do it.”
The theory of punishing an attempt is that the accused, having the intent and having performed some act towards it, though not having committed it, should be punished for his evil design and that which he had done towards carrying it out. As said ,by Bishop, in the first volume of his New Criminal Law, Sec. 435:
“Wherever a man intending to commit a particular crime does an act toward it, but is interrupted, or some accident intervenes so that he fails to accomplish what he meant, he is still punishable. This is called a criminal attempt. ’ ’
Of course, the act must be of sufficient magnitude, and calculated to create an apprehended danger. As observed by another:
*650 ■ “It is difficult in practice to draw the precise line which separates violence menaced from violence begun to be executed ; for, until the execution of it is begun, there can be no assault. We think, however, that, where an unequivocal purpose of violence is accompanied by an act which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun, the battery is attempted.” 2 Wharton’s Crim. Law, See. 798.
In this case, upon entering the hotel, late in the night, Tropp removed his shoes and, having informed Cox of his purpose to strike Dunlevy, moved, with a loaded 38-calibre revolver in one hand and a leather sap filled-with shot in the other, stealthily toward his head on the cot, where he was interrupted in reaching under the pillow by Dunlevy’s springing to his feet. Had the latter, instead of doing this, merely opened his eyes, can there be any doubt that the billy or revolver would have been used' either to put him in fear, or disable him? Arming himself with the purpose stated, and approaching the cot in that condition, in the circumstances disclosed, was as definite a menace of violence against the person of Dunlevy as though he had approached with the revolver presented or the billy drawn, and, as we think, might properly have been found to constitute an assault. It follows 'that the evidence was sufficient to carry the issues as to defendant’s guilt to the jury.