State v. Fallon

• Decision Date: 18 May 1892
• Citation: 52 N.W. 318,2 N.D. 510
• Court: North Dakota Supreme Court

52 N.W. 318

2 N.D. 510

STATE OF NORTH DAKOTA, Defendant in Error v. EDWARD FALLON, Plaintiff in Error

Supreme Court of North Dakota

May 18, 1892

ERROR to district court, Cass county; Hon. WILLIAM B. MCCONNELL Judge.

Prosecution against Edward Fallon for an alleged assault with intent to commit robbery. Verdict of guilty, and judgment thereon. Defendant brings error. Reversed.

Reversed.

M. A Hildreth, for plaintiff in error.

L. A Rose, State's Atty., and C. A. M. Spencer, Atty. Gen., for the State.

OPINION

BARTHOLOMEW, J.

Edward Fallon, the plaintiff in error, was informed against, with one Howard, charging them with the crime of making an assault with a dangerous weapon, to-wit, a pistol, with intent to commit a felony, and the circumstances of the offense were charged in the following language: "That at said time and place, the said defendants, in and upon one Charley Curfman, did then and there unlawfully, feloniously, and with premeditated malice make an assault, and then and there, at and against him, the said Charley Curfman, did unlawfully and feloniously, and with premeditated malice, shoot a certain pistol, then and there loaded with gunpowder and a leaden ball, with the intent then and there upon and against him, the said Charley Curfman, to commit the crime of robbery." Sections 6481, 6482, Comp. Laws, read as follows: "Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. To constitute robbery, the force or fear must be employed either to obtain or to retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery." The state may fairly claim that the evidence establishes the following facts: The assault occurred between 8 and 9 o'clock on the evening of October 29, 1891, in the bright rays of an electric light, very near the west end of what is known as the "North Bridge" across the Red river, in the city of Fargo. Curfman, the party assaulted, had started to go east across the bridge. Before reaching the bridge he passed the plaintiff in error, who asked him for the price of a drink, which was refused. After passing, Curfman noticed plaintiff in error following him. Just before reaching the bridge Howard, coming from the opposite direction, met Curfman, and ordered him to halt, and presented a revolver in his face. At the same time plaintiff in error ordered him to throw up his hands. They exchanged a few words, when plaintiff in error grabbed Curfman's watch chain, and said, "Give us your money." At that instant footsteps were heard approaching, and the assailants started to run. When fifteen or twenty feet distant from Curfman they wheeled, and Howard fired the pistol, hitting Curfman in the jaw. The assailants then immediately disappeared in the darkness in some woods south of the bridge. At the proper times counsel for the plaintiff in error raised the point that there was a fatal variance between the allegations in the information and the proofs, and asked the court to advise an acquittal for that cause. The request was denied.

Counsel contends that, while the information charges that the shooting was done with intent to commit robbery, yet the evidence shows that the assault with intent to rob was a completed event before the shooting was done, and that the shooting was done for the purpose of facilitating the escape of the assailants, and, without claiming the evidence insufficient in the absence of proof of the shooting to establish the charge of an assault with a dangerous weapon with intent to commit robbery, it is urged that, as the pleader saw fit to allege the particular circumstance and acts descriptive of the assault, the assault must be proven in the manner and by the means alleged, or the variance will be fatal. This proposition is supported by the following authorities, among others: Greer v. State, 50 Ind 267; Dennis v. State, 91 Ind. 291; Gray v. State, 11 Tex. Ct. App. 411; Withers v. State, 21 Tex. Ct. App. 210, 17 S.W. 725; State v. Newland, 7 Iowa 242; State v. Vorey, 41 Minn. 134, 43 N.W. 324; Com. v. Richardson, 126 Mass. 34--and is undoubtedly among the elementary principles of criminal procedure. The learned counsel for the state frankly admits the proposition, but seeks to avoid its force by claiming that the jury were warranted in finding that when the shot was fired the assailants intended to persist in their purpose of robbing Mr. Curfman. Two insurmountable objections to that position suggest themselves: First, the...