Territory v. Reuss

• Decision Date: 31 January 1885
• Citation: 5 Mont. 605
• Parties: TERRITORY v. REUSS.
• Court: Montana Supreme Court

5 Mont. 605

TERRITORY

v.REUSS.

Supreme Court of the Territory of Montana.

Filed January 31, 1885.

Appeal from Second district, Missoula county.

COBURN, J., dissenting.

Wm. H. De Witt and J. C. Robinson, for appellant.

Wm. H. Hunt, Atty. Gen., for respondent.

WADE, C. J.

This is an indictment for an attempt to commit the crime of murder, and is based upon a statute of the territory which provides that every person who shall attempt to commit a public offense, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction shall be punished, etc. The indictment charges that the defendant, on the eighteenth day of December, 1882, at the county of Missoula, did, unlawfully, willfully, feloniously, on purpose, and with his deliberate, premeditated malice aforethought, attempt to kill and murder one Frank H. Woody, and in said attempt, and towards the commission of said offense, did then and there feloniously, and with his premeditated malice aforethought, deposit and place on the porch of the residence of said Woody, in which the said Woody was at the time living and residing, a certain box made and constructed of pasteboard, and filled with gunpowder and a large number of leaden bullets, shot, and balls, and around which box was wrapped strong cloth, paper, and strong twine, to which box was attached a fuse, so as to cause said box to explode; and that the defendant did then and there unlawfully, willfully, feloniously, and with his deliberate and premeditated malice aforethought, ignite and set fire to said fuse, and thereby caused said box, so made and constructed, and placed on said porch, then and there to explode, with the intent then and there, and thereby, him, the said Woody, unlawfully, feloniously, willfully, on purpose, and of his deliberate, premeditated malice aforethought, to kill and murder, but that the said Herman P. Reuss did then and there fail in the perpetration of said offense. There was a verdict of guilty and judgment thereon, from which, and from an order overruling a motion for a new trial, the defendant appeals to this court, and assigns as error that the testimony is insufficient to warrant the verdict.

It is virtually admitted in the argument that the defendant constructed the box or bomb in question; that he placed in it gunpowder and leaden bullets or balls; that he attached thereto a fuse; that he placed the box so loaded and prepared upon the porch of the dwelling-house of Woody; and that he ignited and set fire to the fuse, thereby causing the box or bomb to explode. But the defendant contends that this bomb or box, by its explosion, was incapable of doing Woody any injury, and therefore that he ought to have been acquitted. The testimony shows this state of facts: A few days prior to this explosion the defendant and Woody had had a dispute and difficulty about some coal, which the defendant was to deliver to third persons, and soon thereafter the defendant had threatened the life of Woody. On the morning of the eighteenth of December, at about 5 o'clock, Woody was awakened by a noise on his front porch, like some one walking there, and in about three minutes thereafter there was a very loud and violent explosion, which awakened the town, sounding, as some of the witnesses said, like a 12-pound howitzer. After the explosion Woody got up from his bed, which was situated in the house four or five feet from the front door, opening onto the porch, and found the upper half of the front door, which was partly of glass, crashed or blown in, the porch littered and strewn with what appeared to be the remains of a bomb-shell, and about 70 shot in the ceiling of the porch. In a civil case, an appellate court will not disturb the verdict if there is any evidence to support it. In a criminal case, a new trial will be granted if the testimony preponderates against the verdict. Hil. New Trials, 365; Leake v. State, 10 Humph. 144.

All presumptions are in favor of the verdict. There is no fault found with the instructions to the jury. We are asked to say that the jury and the judge who tried the case made a mistake in a matter of fact. The judge who tried the case, saw the witnesses, heard them testify, and observed their manner and appearance upon the stand, is in a better position to judge of the weight and effect of the testimony than an appellate court that does not see the witnesses, and has before it only an imperfect report of the testimony. And so, upon a mere question of fact, it requires a strong, clear case to authorizeor justify this court in setting aside a verdict for the reason that the same is not warranted by the evidence. The defendant having deliberately threatened the life of Woody, we cannot say that he did not intend to kill him; and considering the dangerous material with which this box or bomb was loaded, the position in which it was placed, and the violence of the explosion, we would not be warranted in declaring that he had employed means insufficient to carry this intention into execution. The noise on the porch two or three minutes before the explosion was very likely designed to call Woody to the door. The fuse was so timed as to have given him an opportunity to have reached the door before the explosion; and if he had been in the door at that time, or attempting to put out the fire of the fuse, it is probable that he would have been killed. Certainly, the evidence does not preponderate against such a probability, nor does it suggest a reasonable doubt as to the intent of the defendant, or as to the sufficiency of the means resorted to by him to carry such intent into execution. Men are presumed to intend what they attempt to do, if they use the means adequate and appropriate to accomplish their purpose. Because the attempt failed for the reason that Woody was behind time in reaching the door, or for the reason that the fuse was too short, we cannot conclude therefrom that the defendant resorted to inadequate or insufficient means to accomplish his declared purpose and intent. The defendant made no mistake as to the means used. His plan seemed to be complete, and the reason why he failed was in his miscalculation as to the time when Woody would arrive upon the scene. He cannot very well ask for a new trial because he made a mistake in this regard.

The judgment is affirmed, with costs.

COBURN, J., dissenting.

This is an indictment against the defendant for an attempt to murder one Frank H. Woody, by depositing and placing on the porch of the residence of said Woody, in which he was at the time living, a box made of pasteboard, and filled with gunpowder and a large number of leaden bullets, shot, and balls, and around which said box was wrapped strong cloth, paper, and strong twine, and attached to the box was a fuse to cause it to explode, which the defendant ignited, causing the same to explode on Woody's porch, with the intent to murder him; and that the defendant failed in the perpetration of this crime. The defendant was tried by a jury, verdict of guilty was found, and judgment rendered. There is no exception to the indictment as to any rulings upon the evidence. The only question raised by the appellant is upon the sufficiency of the evidence to warrant a conviction. The statute provides that “every person who shall attempt to commit a public offense, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or interrupted in executing the same, upon conviction thereof, in cases where no provisionis made by law for the punishment of such attempt, shall be punished as follows,” etc. An attempt has been defined to be the intent to do a wrongful act, coupled with overt acts towards its commission. There must be an act directly approximating to the commission of the offense; and there must be a physical ability to complete the meditated offense; but an apparent capacity is sufficient. Regina v. Phillips, 8 Car. & P. 736; Rex v. Eldershaw, 3 Car. & P. 396; Reg. v. Collins, Leigh & C. 471; S C. 9 Cox, C. C. 497; 1 Whart. Crim. Law, (8th Ed.) § 184; Lewis v. State, 35 Ala. 380;State v. Elick, 7 Jones, (N. C.) 68.

In this case the explosive instrument is described in the indictment as a pasteboard box, wrapped with strong cloth, paper, and twine. Mr. Woody, the person whose life defendant is alleged to have attempted to take, testifies that he found a portion of a paper box on his porch soon after the explosion, and about 70 shot there also; that the effect of the explosion was to break the upper part of the glass front door which opened on the porch; that the shot indented the ceiling of the porch, the force of the shot being greater there than on the sides of the building. There was a piece of fuse found upon the porch with fragments of the box. This occurred about 5 o'clock in the morning, he being awake at the time, having been awakened by a noise on his front porch resembling a person walking. Within two or three minutes after this he heard the report of an explosion as loud as a 12-pound cannon. About 6 o'clock he got up and went out on the porch, and saw the effects: the glass in the front door broken and blown into the hall; the shot and fragments of the box on the porch, and the marks on the ceiling.

Charles W. Benny, witness for the territory, the sheriff, was at Woody's house that morning, and saw the fragments of the box or bomb. He took charge of them, and kept them in his office. He examined the premises, the porch, on the morning of the explosion. Saw the broken door. The glass was smashed. There were just a few dents of shot on the walls and overhead. There was no appearance of powder burned there on the floor. This is substantially all the evidence as to the effect of the explosion, except that it was heard by three...