164 P. 540 | Mont. | 1917
delivered the opinion of the court.
“In the District Court of the Fourth Judicial District of the State of Montana, in and for the County of Ravalli. * # #*425 Comes E. C. Kurtz, county attorney of said county, and * * * informs the court: That one Charles Eains, late of the county of Eavalli, state of Montana, on or about the 15th of October, 1915, at and in the county of Eavalli, in the state of Montana, did unlawfully, feloniously, and willfully, on purpose, and with his deliberate premeditated malice aforethought, attempt to kill and murder one- Elizabeth Eains, and in said attempt and toward the commission of said offense did, then and there, feloniously and with his premeditated malice aforethought, start to walk to the home of Elizabeth Eains, in the said county of Eavalli, state of Montana, and that upon meeting her, the said Elizabeth Eains, in and upon a private highway a short distance from her home, did then and there, on purpose and with his deliberate premeditated malice aforethought, intercept and stop her, and did strike her in the face, and did compel her to return to her home with him; that upon the arrival at the home of said Elizabeth Eains the said Charles Eains did deliberately and feloniously force her to enter her house, and did enter after her and lock the door, and take possession of the key to said door, all of which was done with the deliberate, premeditated, and felonious intent, then and there, upon the part of him, the said Charles Eains, to kill and murder the said Elizabeth Eains, he, the said Charles Eains, being at said time in the possession of a 38-caliber Iver Johnson revolver, loaded with cartridges containing powder and leaden bullets, and being in possession, at said time, of a 22-caliber special rifle, loaded with cartridges containing powder and leaden bullets, and being at said time in the possession of a bottle containing laudanum, by the use of all of which he, the said Charles Eains, having then and there the deliberate, premeditated, and felonious intent to kill and murder said Elizabeth Eains, did then and there attempt to do so. That said Charles Eains did then and there fail in the perpetration and commission of said offense, and was then and there prevented in the execution of the same, by the following facts: The said Charles Eains did take a water-pail and unlock the door and start to go to a near-by spring for the purpose of*426 getting a pail of water; that- after stepping outside said house he locked the door from the outside, keeping the key to said door in his possession; that as soon as he stepped out of the said door the said Elizabeth Rains opened a window on the opposite side of said house, through which she escaped to a near-by neighbor. All of which is contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Montana.”
The appellant’s contention is that this document is inadequate to support the judgment, and we think he is correct. Our statute provides: “An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” (Rev. Codes, see. 8894.) And Mr. "Wharton, in his excellent work on Criminal Law (eleventh edition, section 212), thus enlarges upon this definition: “An attempt is an intended apparent unfinished crime. It must be intended, since it is of its nature that it should be committed in order to effect a specific criminal result. It must be apparent, since if it be obviously not likely to effect the result at which it aims (e. g., where a popgun is leveled at a ship, or a witch is employed to use enchantments), it is not indictable. It must be unfinished, as otherwise the indictment would be for the complete crime; but there must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” So, too, the more modern text in 6 R. C. L., page 279, says: “In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, shall have done some overt act adapted to, approximating, and which in the ordinary likely course of things would result in the commission thereof. Therefore the act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation.”
These criteria, which have the support of abundant judicial authority (People v. Murray, 14 Cal. 160; Hicks v. Common
But it is said: "He armed himself with three deadly weapons, to-wit, a loaded revolver, a loaded rifle, and a bottle of laudanum.” The information states that he was so armed, but it does not charge that all or any of this panoply of war was actually used in any effort to accomplish the alleged design. The worst that can be said of it is that there was preparation. In People v. Murray, supra, the court, speaking through Mr. Chief Justice Field, said: "The evidence in this case entirely fails to sustain the charge against the defendant of an attempt to contract an incestuous marriage with his niece. It only discloses declarations of his determination to contract the marriage, his elopement with the niece for that avowed purpose, and his request to one of the witnesses to go for a magistrate to perform the ceremony. It shows very clearly the intention of the defendant, but something more than mere intention is
Singularly enough, when all the things alleged in the information had been done and the preparation was complete, the appellant took a water-pail and left the house to get some water,
It may be, as urged by the state, that, had these things been omitted, the information would have been sufficient; they, however, were not omitted, but the pleader, by inserting them, limited and characterized his general allegations, so as to make them clearly ineffectual.
The judgment and order appealed from are reversed and the cause is remanded, with directions to discharge the appellant, so far as the present information is concerned.
Reversed and remanded.