State v. Stone

• Decision Date: 02 December 1909
• Citation: 105 P. 89,40 Mont. 88
• Parties: STATE v. STONE.
• Court: Montana Supreme Court

105 P. 89

40 Mont. 88

STATE v. STONE.

Supreme Court of Montana

December 2, 1909

Appeal from District Court, Dawson County; C. H. Loud, Judge.

George Stone was convicted of crime, and appeals from the judgment. Modified and affirmed.

C. C Hurley, for appellant.

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

BRANTLY C.J.

Upon information charging him with the commission of the infamous crime against nature upon a male child of the age of 15 years, the defendant was found guilty of an attempt to commit the offense. By the judgment of the court, he was sentenced to a term of 15 years In the state prison and adjudged to pay the costs of prosecution. He has appealed from the judgment.

The first contention made in his behalf is that there is no provision of law under which he could be sentenced for an attempt to commit the infamous crime against nature. The argument is: That the penalty for this offense, as declared by the statute, is imprisonment in the state prison for a term not less than five years; that the penalty for an attempt is imprisonment for a term not exceeding one-half the longest term prescribed for the offense so attempted; that there is no definite limit to the term which may be imposed for the infamous crime against nature; that the court had no basis upon which to determine the penalty in this case; and hence that it was authorized to impose no penalty other than the one prescribed for assault in the second degree.

The defendant was sentenced under section 8895, Rev. Codes, which declares: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows (1) If the offense so attempted is punishable by imprisonment in the state prison for five years, or more, or by imprisonment in the county jail, the person guilty of such attempt is punishable by imprisonment in the state prison, or in the county jail, as the case may be, for a term not exceeding onehalf the longest term of imprisonment prescribed upon a conviction of the offense so attempted. ***" The term for which one found guilty of the infamous crime against nature may be imprisoned is prescribed by section 8359 of the Revised Codes, which declares: "Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years." Since the minimum limit only is here fixed, the penalty for this crime may be extended to life, under the provision found in section 8902, for there it is expressly declared that "the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed."

The penalty for assault in the second degree is fixed by section 8313 at not less than one nor more than five years, or a fine not exceeding $2,000, or both. While some of the various assaults defined in this section are purely statutory, and involve a battery as well as a common-law assault--that is an attempt with force or violence to do a corporal injury to another, under circumstances denoting an intention to do it coupled with the present ability to carry the intention into effect--an assault with intent to commit a felony of any kind is a distinct offense from that of attempt to commit the felony, as is pointed out in People v. Lee Kong, 95 Cal. 666, 30 P. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165. Under section 8313, to constitute an assault other than one which involves a technical battery without which the offense is not complete, there must be present both the element of attempt and the element of present ability to inflict the injury. The absence of either is fatal to the charge. The absence of the latter element, however, does not prevent a conviction for the attempt, for, under a charge of assault, the defendant may be convicted either of the assault or of the attempt, because the former includes all the elements of the latter. If the act done is with the requisite intent and tends to effect its purpose,...