State v. Herron

• Decision Date: 02 May 1892
• Citation: 29 P. 819,12 Mont. 230
• Parties: STATE v. HERRON.
• Court: Montana Supreme Court

29 P. 819

12 Mont. 230

STATE v. HERRON.

Supreme Court of Montana

May 2, 1892

Appeal from district court, Deer Lodge county; DAVID M. DURFEE Judge.

Information against Thomas Herron. He was acquitted, and the state appeals. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

The information in this case was for an attempt to commit an assault with a deadly weapon, with the intent to commit a violent injury upon the person of George W. Nelson. On the trial of the case the state introduced its testimony, the gist of which, as far as this appeal is concerned, is as follows: The defendant met the complaining witness, Nelson upon the road. Nelson was driving a team, loaded with wood. Defendant stopped Nelson, and ordered him off the road. Nelson declined to go, when the defendant called to his house for his rifle. Nelson followed the road for about 250 feet when he was met by the defendant, where the following colloquy took place, quoting Nelson's testimony "'Will you stop?' I said, 'Yes. You will shoot, will you?' He did not answer, but said, 'Turn around quick, or I will blow your head off;' and I turned around." The witness further testified that the defendant "had the rifle this way, [indicating,] one hand on the trigger and one on the barrel. He came up within 20 or 30 feet of me. He had the rifle in front of him, towards me. He said: 'If you move another step forward, I will blow your head off. Turn around, and turn around quick."' It was further testified on behalf of the state that the defendant pointed the rifle at the complaining witness. Two other witnesses besides Nelson testified to practically the same facts. It appears that the conduct of defendant was angry and threatening. At the close of the testimony for the state the defendant moved the court to instruct the jury to acquit the defendant, on the ground that the material allegations of the information were not proven, in this: that it was not proven that the gun was loaded, and that proof of pointing the gun, with threats, is insufficient to sustain the information. Some other points are discussed by counsel in their briefs, but the proposition upon which the decision below was made was simply that there was a failure of proof that the weapon used was a deadly weapon, for the reason that it was not shown that the gun was loaded. The district court, on this ground, instructed the jury to acquit, and judgment was entered in favor of defendant. The state appeals. The one proposition, as set forth in the statement, will be discussed.

Henri J. Haskell, Atty. Gen., W. S. Shaw, Co. Atty., and H. F. Titus, for the State.

H. R. Whitehill, for respondent.

DE WITT, J., (after stating the facts.)

It is not questioned but a loaded rifle is a deadly weapon. In this case a rifle was used. It was used with threats. The defendant said that he would blow Nelson's head off. He thus threatened to do that which he could do only if the gun were loaded. The gun could be used, as threatened to be used only when loaded. Under these circumstances, on an information for an attempt, must the state prove that the gun was loaded, or is it a matter of defense to show the fact (if it be a fact) that there was no load in the gun? This was the proposition fairly before the district court, and that upon which we will decide the appeal. It seems to be a first impression in this jurisdiction. Whether the instrument in question was a deadly weapon has been held to be a question of fact for the jury. Doering v. State, 49 Ind. 56. Also that it was a matter of law for the court. State v Rigg, 10 Nev. 284; Bish. Crim. Law, § 335. It has also been held that it is sometimes a mixed question of law and fact. Id. § 335; note 4. But we may pass a decision of that point. The district court took the matter as a question of law, and we will only inquire whether it was correctly decided from that point of view. The authorities are not uniform. In State v. Napper, 6 Nev. 113, it was directly held, in a case of this nature, that the court should have directed a verdict for the defendant, for the reason that it was not proven that the pistol was loaded. This case cites State v. Swails, 8 Ind. 524. But the latter was a very different case. There it seems to have appeared affirmatively that the gun was charged with only powder and a light cotton wad, and the court held, in the state's appeal, that the following instruction was not error: "If you believe from the evidence that at the time the defendant fired the gun at said Lee it was not charged with anything but powder and a light cotton wad, Swails being at the distance of forty feet from Lee at the time, and that at that distance the life of Lee was not at all endangered or put in jeopardy by the act of Swails in discharging the gun at him, in consequence of the manner in which it was loaded, the defendant cannot be convicted, although he may have thought that the gun was properly loaded with powder and ball, and although he may have intended to murder Lee." This case is also referred to in Whart. Crim. Law, § 1280, cited in the Nevada case above. The Nevada case also cites State v. Neal, 37 Me. 468. But the Maine case does not go to any such extent as does the Nevada case. The case of Fastbinder v. State, 42 Ohio St. 341, decided by a divided court, and cited by respondent, was decided largely upon the ground that the circumstances of the case did not show an intent to commit the offense charged. It is said in State v. Shepard, 10 Iowa, 126: "Mr. Greenleaf (volume 1, § 59) states that the presenting a gun or pistol at a person is an assault. But he adds that 'whether it be an assault to present a gun or pistol, not loaded, but doing it in a manner to terrify the person aimed at, is a point upon which learned judges have differed in opinion.' It is held to be such in Reg. v. St. George, 9 Car. & P. 483; State v. Smith, 2 Humph, 457. And see Vaughan v. State, 3 Smedes & M. 553; State v. Benedict, 11 Vt. 236. But, on the contrary, see Blake v. Barnard, 9 Car. & P. 626; Reg. v. Baker, 1 Car. & K. 254; Reg. v. James, Id. 530,--which last two cases, however, were under a statute. Whart. Crim. Law, P. 545, says that it is not an assault, and cites only the above case of Reg. v. Baker." This opinion further holds: "After reviewing the question in its various lights, we are inclined to hold with those who regard it as an assault where the person aimed at does not know but that the gun is loaded, or has no reason to believe that it is not." Simply pointing a pistol at one,...