State v. Dist. Court of Third Judicial Dist. for Deer Lodge Cnty.

Decision Date16 March 1907
Citation35 Mont. 321
PartiesSTATE v. DISTRICT COURT OF THIRD JUDICIAL DIST. FOR DEER LODGE COUNTY et al.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

Writ of supervisory control, on relation of the state, against the district court of the Third judicial district in and for the county of Deer Lodge and the judge thereof, to review an order discharging one Andrew Fairgraives from imprisonment under a sentence and remanding him to the custody of the sheriff to be sentenced as for a misdemeanor. Demurrer to writ sustained.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

Maury & Hogevoll, for respondents.

HOLLOWAY, J.

On October 13, 1905, an information was filed in the district court of Silver Bow county charging Andrew Fairgraives with the crime of assault as defined in section 403 of the Penal Code, which reads as follows: “Every person who willfully and maliciously places or throws, or causes to be placed or thrown upon the person of another, any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than 14 years.” Upon the trial the jury returned the following verdict: We, the jury in the above–entitled action find the defendant, Andrew Fairgraives, guilty of the crime of assault with corrosive acids and caustic chemicals, and leave his punishment to be fixed by the court.” The court thereupon rendered its judgment that Fairgraives be punished by imprisonment in the penitentiary for the period of 14 years, and he was thereupon delivered into the custody of the prison contractors at Deer Lodge and confined in the penitentiary. A petition for writ of habeas corpus on his behalf was then presented to the district court of the Third judicial district in and for Deer Lodge county. The writ issued, and upon the return and a hearing Fairgraives was discharged from the custody of the prison contractors and remanded to the custody of the sheriff of Silver Bow county, to be sentenced as for a misdemeanor. The Attorney General then made application to this court for writ of supervisory control to review the action of the district court of Deer Lodge county. An order to show cause was issued, and upon the return a demurrer was interposed to the petition, and upon these pleadings the matter was submitted for decision.

The ground upon which Fairgraives urged his release from the penitentiary is that, although he was charged with the commission of a felony, he was convicted only of a misdemeanor. It is to be observed that it is not every assault with vitriol, caustic acids, or corrosive chemicals, which is designated a felony by section 403 above, but only such an assault as is made willfully, maliciously, and with the intent to injure the flesh or disfigure the body of the person assaulted. The willfulness, malice, and intent to injure are necessary requisites in order to constitute the assault a felony. The verdict finds the defendant guilty of an assault with corrosive acids and caustic chemicals. It wholly fails to find that the assault was committed willfully or maliciously, or with the intent to injure the flesh or disfigure the body of the person assaulted. It is therefore clear that the jury did not find Fairgraives guilty of a felony, because they failed to find the elements necessary to constitute a felony. The case of State v. Eschbach, 13 Mont. 399, 34 Pac. 179, is parallel with this case in the district court. Eschbach was charged with the crime of assault with a deadly weapon, instrument, or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears or where the circumstances of the assault show an abandoned and malignant heart. Such a crime was defined by section 60, div. 4, Compiled Statutes of 1887, in force at the time the information in that case was filed. The jury returned a verdict finding the defendant guilty “of an assault with a deadly weapon.” Upon appeal this court said that there were five distinct elements in the offense defined in section 60 above; that the jury had found but two of those elements; and, having omitted to find the other elements necessary to constitute the crime defined, the verdict simply found defendant guilty of an assault as defined in section 58 of the same division of the Compiled Statutes, which was a misdemeanor. The decision in that case is determinative of the fact that by the verdict returned in this instance Fairgraives was found guilty of assault in the third degree, as defined in section 402 of the Penal Code, and the maximum punishment which the court could lawfully inflict was a fine of $500, or imprisonment in the county jail for six months, or both. See, also, State v. Snider, 32 Wash. 299, 73 Pac. 355, and cases cited. That the district court did not have power or authority to sentence Fairgraives to a term of imprisonment in the...

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