Territory of Montana v. Dooley , 4 Mont. 295 ( 1882 )

Wade, C. J.

This appeal presents one question only, viz.: Can a defendant, under an indictment charging him with an assault with intent to commit murder, be lawfully convicted of an assault and battery?

Our statute provides that “an assault with intent to commit murder shall subject the offender” to the punishment therein provided. Under this statute a battery is not necessary to an assault with intent to commit murder. It does not necessarily form one of the elements of that crime. It is not one of the essential parts ■thereof, and is not necessarily included therein. An assault with intent to commit murder may be perfect and complete without a battery. If, therefore, an indictment charging a defendant with an assault with intent to commit murder also charges an assault and battery, it is subject to the objection that it charges two offenses in one indictment, which our statute forbids.

The statute does not authorize the charge of an assault and battery with intent to commit murder, but an assault with such intent, and, though the indictment may recite a battery in connection with and as the consummation of the assault, such recital forms no part of the charge. It follows, therefore, that under such an indictment the only crimes for which a defendant might be convicted would be an assault with intent to commit murder, and a simple assault.

The defendant was tried as for an assault with intent to murder. The indictment did not support the charge, and the objection to it ought to have been sustained.

The indictment being bad as an indictment for an assault with intent to murder, it cannot support a charge of a lesser crime, which, if the indictment were good, would necessarily be included in it. The lesser falls with the greater. The elements that make up an indictment for an assault with intent to murder have no vitality as independent charges, after the main charge upon which they depend fails. The defendant must know with absolute certainty for what he is being tried.

The judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.