Dahlberg v. People

• Decision Date: 21 February 1907
• Citation: 225 Ill. 485,80 N.E. 310
• Parties: DAHLBERG v. PEOPLE.
• Court: Illinois Supreme Court

225 Ill. 485

80 N.E. 310

DAHLBERG

v.PEOPLE.

Supreme Court of Illinois.

Feb. 21, 1907.

Error to Criminal Court, Cook County; John Gibbons, Judge.

Augusta Dahlberg was convicted of an attempt to commit mayhem, and brings error. Reversed and remanded.

Lynn & Roe, for plaintiff in error.

W. H. Stead, Atty. Gen., John J. Healy, State's Atty., and Harry Olson, for the People.

PER CURIAM.

Plaintiff in error was found guilty by a jury in the criminal court of Cook county of an assault with attempt to commit mayhem upon William Grace, and sentenced to the penitentiary on an indeterminate sentence. Motions for new trial, and in arrest of judgment were overruled, and thereupon this writ of error was prosecuted.

It appears from the record that on September 15, 1905, William Grace and his son, H. E. Grace, left their office on Wabash avenue near Fourteenth street, Chicago, and crossed the intersection of the two streets diagonally, intending to take a street car down town. Plaintiff in error approached them, walking west along Fourteenth street. Considerable testimony appears in the record, and more was offered, but ruled inadmissible, as to the relations between plaintiff in error and William Grace, which it is not necessary to refer to at length. It appears, however, that they had known each other for some 22 years. She claimed he was the cause of her separation from her husband, and had persecuted her in many ways, while he in turn claimed she had ‘chased’ him for many years and had written innumerable letters, both to himself and his family, causing him great annoyance, but that he was ready to forget her if she would let him alone. On the day in question, when they saw plaintiff in error, Grace and his son crossed Fourteenth street and started toward a neighboring livery stable, and, upon Mrs. Dahlberg changing her course in the same direction, they started back toward the usual place for taking the car, when she again changed her course, and all three met near the center of Fourteenth street, about where the east sidewalk on Wabash avenue, if extended, would cross the street. When plaintiff in error was about three or four feet from William Grace the testimony tends to show that she took a small bag of red pepper in a powdered form from her satchel, and threw either the bag containing the pepper, as a whole, at William Grace, or, what is more probable from a comparison of the evidence of the various witnesses, threw some of the contents first, and then the bag, with its remaining contents. While a small portion of the pepper fell on Grace's breast none of it reached his eyes. Some of it did enter the eye of a bystander, Richard Hinton, standing about 10 feet away, and the bag itself, with a quantity of the pepper therein, fell to the ground and was secured by Grace's son, and offered in evidence at the trial. After the pepper-throwing incident Grace and his son walked towards the livery barn. Plaintiff in error stated to cross Fourteenth street in the opposite direction from the side on which the barn is situated, and away from the direction taken by the Graces, but afterwards she took the same direction they did, and, catching up with them, struck William Grace across the eye with the handle of her umbrella, bruising and blacking the face in the immediate vicinity of the eye, but not injuring the eye in any way or causing any serious permanent injuries to the face. Grace and his son then went to the livery stable, and plaintiff in error, after following a part of the distance, and possibly making other attempts to strike him with the umbrella, left.

Section 207 of division 1 of the Criminal Code (Hurd's Rev. St. 1905, p. 713) provides: ‘Whoever, with malicious intent to maim or disfigure, cuts or maims the tongue, puts out or destroys an eye, cuts or tears off an ear, cuts, slits or mutilates the nose or lip, cuts off or disables a limb or other member of another person, shall be imprisoned in the penitentiary,’ etc. Section 1 of division 2 (Hurd's Rev. St. 1905, p. 730) provides: ‘Whoever attempts to commit any offense prohibited by law, and does any act towards it but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished, when the offense thus attempted is a felony, by imprisonment in the penitentiary,’ etc. Mayhem, under the common law, while less inclusive than under our statutes, did include the striking out or blinding of an eye. 1 Hawkins' Pleas of the Crown, p. 107. An attempt is defined by a recent writer as ‘an intended, apparent, unfinished crime. * * * 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 in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.’ 1 Wharton on Crim. Law (10th Ed.) § 173. The indictment can be sustained when the means are apparently adapted to the end. The offense is complete if the means employed appeared both to the assailant and to the assailed as adequate; but, if the means are both absolutely and apparently inadequate, then the attempt does not exist. To constitute an attempt, ‘there must be such a preliminary overt act as may, by the course of the usual natural laws, apparently result, if not interrupted, in crime.’ 1 Wharton on Crim. Law (10th Ed.) § 183. In order to make the offense indictable, there must also be joined with the apparent adequate means a guilty intent; and this is especially so in proving an attempt to commit a crime. There must not only be the guilty intent, but there must be a specific intent to do the particular thing. 1 Bishop's...