McNamara v. People

• Decision Date: 05 April 1897
• Citation: 24 Colo. 61,48 P. 541
• Parties: McNAMARA v. PEOPLE.
• Court: Colorado Supreme Court

48 P. 541

24 Colo. 61

McNAMARA v. PEOPLE.

Supreme Court of Colorado

April 5, 1897

Error to district court, El Paso county.

D. M McNamara was convicted of an assault with intent to rob, and brings error. Reversed.

The defendant was convicted upon a charge of assault with intent to rob, and sentenced to confinement in the penitentiary for the term of two years and six months. The indictment charges that the defendant, at a certain place, and upon a certain date, 'being then and there armed with a certain deadly weapon, to wit, a rifle gun, then and there loaded with powder and ball, * * * in and upon one John Simmons * * * did feloniously make an assault, and him, the said John Simmons then and there in bodily fear and danger of his life did feloniously put, with the intent then and there feloniously forcibly, and violently to rob, steal, take, and carry away the personal goods of him, the said John Simmons, to wit certain guns, pistols, and ammunition, the property of him, the said John Simmons, and for which the said D. M. McNamara was then and there seeking, and which the said D. M. McNamara then and there expected to find carried and concealed in a certain vehicle, commonly called a 'stage,' which the said John Simmons was then and there driving, and of which the said John Simmons was then and there in possession; * * * and did then and there feloniously and by force thrust his hand and body into said stage, and demand such guns, pistols, and ammunition, feloniously and by force to rob, steal, take, and carry away.' A motion to quash because the indictment did not state facts sufficient to constitute an indictable or punishable offense was overruled. Inter alia, the defendant requested the following instructions, which were refused: 'Seventh. If the testimony has not shown beyond a reasonable doubt that the gun or rifle held and presented by the person who held up the stage being driven by Simmons was loaded with powder and lead, then it is your duty to return a verdict of not guilty under the indictment.' 'Ninth. As to the defense of alibi, the court instructs the jury that the testimony must show beyond any reasonable doubt that the defendant was present and committed the act charged against him, and, unless the testimony so shows, you must acquit. When a defendant sets up the defense of alibi, even though a preponderance of the evidence might show that he was present, yet that is not enough, unless it convinces you beyond a reasonable doubt that he was.' And upon these matters the court instructed the jury as follows: 'Tenth. * * * The court instructs you that, although no testimony has been introduced showing that the rifle gun described in the indictment was loaded, still if you believe from the evidence beyond a reasonable doubt that such weapon was used by the defendant, and pointed at the witness Simmons, within shooting distance, and in manner charged in the indictment, the law will presume that the same was loaded, and proof of such allegation is not necessary.' 'Fourteenth. One of the defenses in this case is what is known in law as an 'alibi,'--that is, that the defendant was at another place at the time the crime charged in the indictment is alleged to have been committed; and the court instructs you that, to render the proof of an alibi satisfactory, the evidence must cover the whole time of the transaction in question. Fifteenth. If the jury believe from the evidence in this case that an alibi has been established hereby or on behalf of the defendant, then the jury should find him not guilty; that is to say, if the jury should believe from the evidence that at the time when the prosecuting witness alleges that the robbery was committed at the place alleged in the indictment, that the defendant was at such time in Altman, or elsewhere than at the place where the robbery is alleged to have been committed, then you should find the defendant not guilty. Sixteenth. The court instructs the jury, as a matter of law, that where the people make out such a case as would sustain the verdict of guilty, and the defendant offers evidence, the burden is on him to make out his defense as to an alibi; and, when the proof is in, then the primary question is (the whole evidence being considered, both that given for the defendant and for the people), is the defendant guilty beyond a reasonable doubt? the law being that, when the jury have considered all the evidence, as well that touching the question of the alibi as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense of which he stands charged, then they should acquit; otherwise not.'

Cunningham & Vanatta, T. M. Patterson, and Horace N. Hawkins, for plaintiff in error.

Byron L. Carr, Atty. Gen., and George H. Thorne, Asst. Atty. Gen., for the People.

GODDARD, J. (after stating the facts).

Among the errors assigned, those that we regard as important present the following questions: First. The sufficiency of the indictment. Second. Did the court err in refusing to charge, as requested by the defendant, upon the subject of necessary proofs to constitute an assault under our statute and in instructing the jury that, where a gun is presented at another, within shooting distance, the law conclusively presumes that it is loaded? Third. Did the court err in declining to charge, as requested by defendant, upon the subject of alibi, and in giving the instructions which were given upon this subject?

In support of the proposition that the indictment is defective in failing to set forth the facts showing that an assault, as defined in our statute, was committed, it is insisted that, in order to charge an assault as thus defined, it is necessary to state facts which show an unlawful attempt to commit a violent injury, and also present ability to carry such attempt into execution, or to set out that part of the charge in the language of the statute; and that such particularity is especially essential in charging an assault as the foundation for an allegation of an intent to commit a higher crime. This rule prevails in Indiana under a statute like ours. Adell v. State, 34 Ind. 543. But in Illinois--the state from which our statute was taken--the common-law form of an indictment for an assault with felonious intent has been adjudged sufficient (Beckwith v. People, 26 Ill. 500; Allen v. People, 82 Ill. 610; Kennedy v. People, 122 Ill. 649, 13 N.E. 213; Hamilton v. People, 113 Ill. 34); and also in Texas, under a similar statute (State v. Hays, 41 Tex. 526). Mr. Bishop, in discussing this question in his work on Statutory Crimes (section 514), says: 'This Indiana doctrine, as to the allegation, would seem just in a state into whose jurisprudence the common law did not enter as an element. But the common law has made it a sufficient allegation of the act in this offense that, as to the assault, the defendant 'did make an assault' on a person named. * * * This form of the allegation, dispensing with the particulars, and not following the definition, the common law has, to repeat, made adequate. And there is, in principle, no different or greater reason why the allegation should be required to pursue the terms of this statutory definition, where the offense is under it, than the terms of the common-law definition, where the offense is at common law. To say that the defendant 'did make an assault' would mean that he did what the law deems to be such; and, even under the common law, the allegation would differ in its meaning in our different states according to the varying opinions of the tribunals. In Indiana it would signify an assault as defined by the statute under the interpretation of the courts. And this kind of doctrine pervades our American procedure.' Section 741, Gen. St. 1883, reads: 'An assault with intent to commit * * * robbery * * * shall subject the offender to confinement in the penitentiary,' etc. Mills' Ann. St. § 1215. Section 925, Gen. St. 1883 (section 1432, Mills' Ann. St.), provides that: 'Every indictment * * * shall be deemed sufficiently technical and correct which states the offense * * * so plainly that the nature of the offense may be easily understood by the jury.' The indictment in this case meets this requirement, and the motion to quash was properly overruled.

Upon the second proposition the authorities are in irreconcilable conflict; some of the courts holding that proof of an actual present ability to inflict the threatened injury is essential to sustain the allegation of an assault; and, when the assault consists of aiming a gun at another, within such distance that it would be dangerous if loaded and discharged it devolves upon the prosecution to show that it was loaded (State v. Sears, 86 Mo. 169; People v. Lilley, 43 Mich. 521, 5 N.W. 982; Chapman v. State, 78 Ala. 463; State v. Godfrey, 17 Or. 300, 20 P. 625; Fastbinder v. State, 42 Ohio St. 341; State v. Napper, 6 Nev. 113; Klein v. State [Ind. App.] 36 N.E. 763; McConnell v. State, 25 Tex. App. 329, 8 S.W. 275; People v. Dodel, 77 Cal. 293, 19 P. 484); while it is held in other jurisdictions that the offense is complete when it is shown that a weapon of this character is used in a manner to indicate that it was loaded, and for the purpose that a loaded gun is ordinarily used; and if the fact be that it was not loaded, it devolves upon the defendant to show it (State v. Rawles, 65 N.C. 334; State v. Shipman, 81 N.C. 513; Cowley v. State, 10 Lea, 282; Mortin v. Shoppee, 3 Car. & P. 373; Tarver v. State, 43 Ala. 354; Smith v. State, 32 Tex. 593; Crow v. State, 41 Tex. 468; Keefe v. State, 19 Ark. 190; Beach v. Hancock, 27 N.H. 223; Richels v. State, 1 Sneed, 606; State v. Herron, 12 Mont. 230, 29 P. 819). In the...