Territory of Montana v. Milroy , 8 Mont. 361 ( 1889 )

Bach, J.

The indictments and the demurrers in the foregoing cases are identical, and the ruling of this court in the first case will dispose of the others. The indictment, omitting the formal parts, is as follows:—

“The grand jury .... do present and say that Theodore Milroy, on the eighteenth day of June, 1888, at the county of Deer Lodge, Montana, did feloniously, wilfully, purposely, deliberately, premeditately, and with malice aforethought, attempt to commit a violent injury upon the person of Patrick Dooley, he, the said Theodore Milroy, having then and there the present ability to commit said injury by then and there feloniously, etc. (as before), shooting at and against said Patrick Dooley, with a certain gun, commonly called a rifle, then and there loaded, etc., .... with intent then and there, by him, the said Patrick Dooley, feloniously, etc. (as before), to kill and murder.”

To this indictment the defendant demurred upon the following grounds: First. The recitals are for an attempt to assault with intent to commit a violent injury, and the charging clauses are for an attempt to commit murder. Second. That there is no offense charged in the indictment. Third. That more 'than one offense has been stated and charged in the indictment, to wit, an assault with the intent to do great bodily harm, or a violent injury, and an attempt to assault with intent to commit murder, and an assault with intent to commit murder. The demurrer was sustained; the Territory is the appellant. We think that the indictment is the refinement of good pleading. Instead of charging an assault by using the words “did assault,” the prosecuting attorney has inserted the very facts which the law declares shall constitute an assault.

Section 59, page 511, Compiled Statutes, defines an assault, which is declared to be “an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another.” The indictment first charges in the very words of the statute that defendant did commit all the facts essential to an assault; it then proceeds to state the means by which the assault was made, to wit, shooting at Patrick Dooley, and it adds in appropriate words the intent with which the assault was made. Substitute for the definition the act defined thereby, and the validity of the indictment becomes at once apparent; or take one step further in a trial for an assault with intent to commit murder; in instructing the jury the judge would naturally first define an assault, and the definition would be in the very words of the indictment. He would then call the attention of the jury to the description of the instrument claimed or alleged to have been used in this particular attempt to commit a violent injury, to wit, with a rifle; and he would then charge them upon the intent necessary to be proved in order that the crime alleged should be established. In other words, the indictment in this case contains no allegation (except, perhaps, certain adjectives), which the prosecuting attorney would not have to establish.

We are of the opinion that an assault with intent to murder has been charged in this indictment with the greatest degree of exactness; that an offense has been charged; and that the indictment does not charge two offense, except in this, that it properly charges the minor offense of a simple assault, which is included in the greater crime sought to be charged, to wit, “an assault with intent to commit murder.” (See McCulley v. State, 62 Ind. 428; Agee v. State, 64 Ind. 340.)

The judgment is reversed and the cause is remanded to the court below, with directions to overrule the demurrer.

Judgment reversed.

McConnell, C. J., and Liddell, J.; concur.