State v. Quinlan , 126 Mont. 52 ( 1952 )

MR. JUSTICE FREEBOURN:

Defendant was convicted of assault in the first degree and by the court sentenced to serve “twelve years at hard labor at the Montana State Prison.” From the judgment of conviction defendant appeals.

The information charged that defendant “did * * * with intent to commit a felony upon the person of one George Paul Woods, assault him with a loaded firearm, to-wit: a 38 caliber revolver, on Stevens Street between Broadway and Main Streets in Missoula, Montana * * *.” The jury was instructed upon and allowed to consider assault in the first degree and assault in the second degree.

Insofar as is applicable here, assault in the first degree is defined as follows: “Every person who, with intent # * * to commit a felony upon the person or property of the one assaulted or of another:

“1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death * * * is guilty of assault in the first degree * * *.” R. C. M. 1947, sec. 94-601.

Assault in the second degree, as applicable here, is as follows: “Every person who, under circumstances not amounting to the offense specified in the last section: * * *

“5. Assaults another with intent to commit a felony * * * is guilty of an assault in the second degree * * K>. C. M. 1947, see. 94-602.

While, “Every person who commits an assault or an assault and battery, not such as is specified in the foregoing sections of this chapter, is guilty of an assault in the third degree * * E. C. M. 1947, sec. 94-603.

The essence of the crime of assault as charged in the information is the intent to commit a felony upon the person of Woods. See State v. Schaefer, 35 Mont. 217, 88 Pac. 792.

As stated by this court: * * it is incumbent upon the prosecution to prove every material allegation of the information beyond a reasonable doubt” in an assault case. See State v. Barry, 45 Mont. 598, 124 Pac. 775, 776, 41 L. R. A., N. S., 181.

So that before a case could be made against defendant amounting to first or second-degree assault, the prosecution had to prove, by satisfactory evidence, that at the time defendant assaulted Woods by pointing the pistol at him defendant intended to commit a felony upon Woods.

Whatever felony the prosecution expected to prove defendant intended to commit on Woods, it had to be defined by written instructions to the jury before the jury could determine if the evidence showed such intended felony. Such instructions should have been, but were not, given. The court could not assume such intended felony was proven, as it was a fact to be determined by the jury. See State v. Sloan, 35 Mont. 367, 89 Pac. 829.

Since the jury had no way of knowing what felony, if any, defendant intended to commit upon Woods when he pointed the pistol at him, the jury should have been allowed to consider whether or not defendant was guilty of third degree assault, and it was error to refuse defendant’s instruction defining the same.

The evidence shows that defendant, a part-time bartender and clean-up man in the Hawthorn tavern, under the influence of beer and liquor, drank a large amount of benzedrex in beef tea. From different witnesses and before the alleged assault, it appears that defendant “looked sick.” “He was awfully pale” and looked “like the man had just fainted; * * * he didn’t seem to stagger; he just looked like his mind was blank. =x= * * He talked loud, not like he normally does; * * * his eyes were kind of glassy;” they were “droopy.”

Late in the afternoon while in this condition in the Hawthorn club, defendant “was raving about Stubby at the Park.” Stubby was manager of the Park hotel and, as defendant puts it, Stubby and he had ‘ ‘ always been good friends. ’ ’ He took a pistol from behind the bar and left the place. Although he did not say anything, he left the bartender “under the impression he was going after Stubby.”

If he had any intention of harming Stubby, such intention was never carried out or attempted to be carried out. He did not see Stubby and Stubby did not see him.

Sometime later we find defendant being picked up by a taxicab driver at the Palace bar. In the cab he told the cab driver, Woods, to take him to Kellogg, Idaho. “Here’s the fare,” he said, and pointed the pistol at the driver. According to the cab driver, “He told me to start driving or he would kill me right there. * * * I didn’t think he would shoot; that there was any reason for him to shoot me. * * # I would judge it was at least five minutes before I started driving. I know we talked for some time before I did start driving. * * * He didn’t say anything except that he would kill me if I didn’t start driving. * * * l ^as very scared.”

The driver did not drive in the direction of Kellogg. Instead he drove in another direction to the cab office, where a policeman arrested defendant as he got out of the cab with the pistol in his front pants pocket.

Defendant said he remembered nothing of the assault. He last recalled wanting to fight “some big Norwegian.” When the Norwegian would not fight defendant “got mad.” “Just at that time” defendant “thought the whole town had torn loose.” He next remembered of being in jail, where he was taken after his arrest. At that time “it sounded like — it’s hard to explain. The nearest I can explain it is to go over to the roundhouse with a Mallet starting up with the peteocks open.”

Dr. C. H. Waldon testified that 10 milligrams of benzedrex was the accepted dose, and that 250 milligrams, the amount taken by defendant, would be “an extra large overdose;” that it would first produce alertness, then “as the action of the drug would progress * * * it would lead to mental confusion, hallucination, delirium and slurred speech.” He said a person might not remember what he had done while under its influence.

Under the evidence defendant’s proposed instruction No. 3, relating to commission of crime by persons not conscious thereof, R. C. M. 1947, sec. 94-201, subd. 5, offered and refused, should have been given.

If defendant intended anything when he pointed the pistol at Woods, it was to cause Woods to give him a taxicab ride to Kellogg without paying the fare therefor, although the evidence is to the effect he said he would pay when they reached Kellogg. He carried out no threat to kill Woods, although he could have done so. He did not shoot Woods or shoot at him, and did not try to harm him in any way. He did nothing when Woods did not drive toward Kellogg.

Upon another trial the question of assault in the first degree should not be submitted to the jury, and defendant’s cross-examination touching a prior conviction should stop when he has admitted same. State v. Coloff, 152, Mont. 31, 231 Pac. (2d) 343.

For the reasons stated the judgment is reversed and the cause remanded for a new trial.

MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICE BOTTOMLY, concur.