State v. Schirmer
| Decision Date | 18 November 1949 |
| Docket Number | 7525 |
| Citation | 211 P.2d 762,70 Idaho 83 |
| Parties | STATE v. SCHIRMER et al |
| Court | Idaho Supreme Court |
Robert E. Smylie, Atty. Gen., Don J. McClenahan, Asst. Atty. Gen Carl M. Buell, Pros. Atty., St. Maries, for appellant.
An attempt to commit a crime is an offense separate and distinct from the crime itself. State v. Addor, 1922, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219; Graham v. People, 181 Ill. 477, 55 N.E. 179, 47 L.R.A. 731.
An attempt to commit a crime consists of the following elements (1) the intent to commit the crime, (2) performance of some act toward the commission of the crime, and (3) the failure to consummate its commission. State v. Thomason, 1923, 23 Okl.Cr. 104, 212 P. 1026; State v. Prince, 1930, 75 Utah 205, 284 P. 108.
Robert McFadden, Plummer, for respondents.
The respondents have moved to dismiss the appeal on the ground that the transcript was not served upon their attorney as required by section 19-2812, I.C. This section requires that the transcript be served by the attorney for appellant upon attorney for respondent within ten days after receiving copies thereof from the clerk, and that proof of service be filed with the clerk of the supreme court. After this motion was made, the proof of service was filed with the clerk of the supreme court almost seven months after the service was made and after the cause was set for hearing on the merits. This filing was too late to constitute a reasonable compliance with the statute. After the transcript was served there was a change in counsel representing respondents and their present counsel did not know that the transcript had been served. However, respondents do not support their motion with any showing of prejudice. The motion to dismiss is denied. Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056.
The defendants were charged and convicted in the probate court of Benewah County of the crime of attempt to kill deer with the aid of a spot light. On appeal the district court sustained defendants' demurrer to the criminal complaint, set aside the judgment of conviction and ordered the proceedings dismissed. This appeal is from that judgment.
The charge as set out in the amended complaint is as follows: "The said Herman W. Schirmer and W. B. Golden on or about the 12th day of November, A.D., 1948, at and in the County of Benewah, State of Idaho, they and each of them then and there being did then and there knowingly, willfully, intentionally, unlawfully attempt to kill deer, a game animal, with the aid of a spot light in the night time, after dark, which said spot light was attached to the automobile which the said defendants were driving, operating and riding in on a public highway in said County and State; and while said automobile was so driven on said highway, said spot light was turned on and used by said defendants to spot deer on said highway and along the sides thereof, for the purpose of killing any deer, a game animal that might have been spotted with said spot light, and said defendants and each of them at said time and place had loaded rifles in said automobile to be used by them and which they intended to use to kill any deer in the event any deer was spotted by the use of the said spot light contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Idaho."
The statute upon which this charge is based, so far as applicable, is as follows: I.C. § 36-1301.
It is to be noted that the provision here involved does not make it unlawful to hunt deer or other game with the aid of a spot light. Appellant's contention is that the complaint is sufficient since it uses the language of the statute defining the crime. The complaint does contain the words of the statute. But it does not stop there. It goes on and sets forth the particular acts in which, or by means of which, the state avers the defendants committed the offense. In...
To continue reading
Request your trial
-
State v. Otto
...59 (1962); State v. Bereman, 177 Kan. 141, 276 P.2d 364 (1954); People v. Gallardo, 41 Cal.2d 57, 257 P.2d 29 (1953); State v. Schirmer, 70 Idaho 83, 211 P.2d 762 (1949); 3 State v. Ainsworth, 146 Kan. 665, 72 P.2d 962 The general rule in regard to solicitations within the context of the pr......
-
State v. Webb
...by a motion in arrest of judgment. State v. Hinckley, 4 Idaho 490, 42 P. 510; State v. Sedam, 62 Idaho 26, 107 P.2d 1065; State v. Schirmer, 70 Idaho 83, 211 P.2d 762; State v. Slater, 71 Idaho 335, 231 P.2d 424; Sections 19-1703(4), 19-1711, and 19-2408, Idaho Section 19-1516, I.C., among ......
-
Moerder v. City of Moscow
...above cited, Sec. 13-215, I.C., has not resulted in any prejudice. Hence the motion to dismiss the appeal is denied. State v. Schirmer, 70 Idaho 83, 211 P.2d 762; Clayton v. Barnes, 52 Idaho 418, 16 P.2d The first question argued and presented for determination is whether or not the rights ......