Ex Parte Turner

It is insisted at the outset, on the part of the state, that: As it appears from the record that a complaint having been made and filed, charging that a felony had been committed, upon which a warrant issued for the defendant, upon which he was arrested, a preliminary examination duly had before an examining magistrate, and thereupon a finding made that the defendant was guilty as charged in said complaint, and his bail fixed in the sum of $500. That petitioner failing to give bail, had been legally committed for trial before the district court of Lincoln county, and that, this so appearing, the petitioner should be remanded upon the record under section 4867, Wilson's Rev. Ann. St. 1903, wherein it is expressly provided that:

"No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Second, upon any process issued on any final judgment of a court of competent jurisdiction; or, fourth, upon a warrant of commitment issued from the district court, or any other court of competent jurisdiction upon an indictment or information."

It was held by this court in the case of Ex parte CharlesJohnson, 1 Okla. Crim. 414, 98 P. 461, where this question was raised, that an order of commitment to hold a defendant for trial, issued by a magistrate upon a preliminary examination, and a finding made that it appears that the defendant is guilty as charged in the complaint, is not "a process issued on any final judgment of a court of competent jurisdiction," nor is such a commitment included in any process named in section 4867, supra, and that therefore there is no prohibition in said section to prevent a court or judge from inquiring into the illegality of the imprisonment of a person under a commitment of an examining magistrate.

The material question, however, in this case, is whether on the evidence submitted to us a felonious offense is made out against petitioner.

Counsel for petitioner contend that there was no evidence of the commission of the felony charged, or any other offense, of which under our laws the district court of Lincoln county would have jurisdiction. Section 2206, Wilson's Rev. Ann. St. 1903, prescribes that:

"Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, or in resisting the execution of any legal process, is punishable by imprisonment in the State prison not exceeding ten years."

This section contains two clauses, and embraces two species of offenses, punishable alike. The first clause relates to shooting, shooting at, or attempting to shoot at, another, with any kind of firearm, air gun, or other means whatever, with intent to kill any person. The complaint in this case was framed upon this clause of said section and charges "an attempt to kill by attempting to shoot." The initial ingredient of this offense is an assault. Certain elements or particulars are therein specified, which when united form the complement of the offense. The facts and circumstances which the evidence offered, prove or tended to prove, do not constitute the elements of the offense charged. At most the evidence offered tended to prove a minor misdemeanor of which the justice court had jurisdiction as a trial court.

While the conduct of the petitioner as shown by the record was reprehensible, upon the evidence as a whole, giving it its full force and effect, there is an absolute failure of proof that the offense of attempting to kill by attempting to shoot was committed, or that there was probable cause to believe petitioner guilty as charged.

In Hicks v. Com., 86 Va. 223, 9 S.E. 1024, 19 Am. St. Rep. 891, the Supreme Court of Virginia, in considering an indictment charging the defendant with attempt to poison, with intent to kill, one A., by buying the poison and delivering it to one L., and soliciting her to administer it in coffee to A., says:

"An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct ineffectual act done towards its commission."

2 Bishop, Crim. Proc. par. 71. Or, as Wharton defines it:

"An attempt is an intended, apparent, unfinished crime."

Therefore the acts must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must be not merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. McDade v. People, 29 Mich. 50; Bouv. Law. Dict. "Attempt."

It has been often held that the purchase of a gun with intent to commit murder, or the purchase of poison, with the same intent, does not constitute an indictable offense, because the act done in either case is considered as only in the nature of a preliminary preparation, and as not advancing the conduct of the accused beyond the sphere of mere intent. "To make the act an indictable attempt," says Wharton, "it must be a cause, as distinguished from a condition; and it must go so far that it would result in the crime, unless frustrated by extraneous circumstances." 1 Whart. Crim. Law, par. 181.

This principle is well illustrated by the case of People v.Murray, 14 Cal. 159. In that case the defendant was indicted for an attempt to contract an incestuous marriage with his niece. It was shown that, after declaring his intention to marry her, he actually eloped with her, and sent for a magistrate to perform the ceremony, and at the trial he was convicted; but on appeal the judgment was reversed, the appellate court holding that these were mere preparations, and did not constitute an attempt, within the meaning of the statute. In delivering the unanimous opinion of the court, Field, C.J., said:

"The evidence shows very clearly the intention of the defendant; but something more than the mere intention is necessary to constitute the offense charged. Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. To illustrate: A party may purchase and load a gun, with the declared intention to shoot his neighbor; but, until some movement is made to use the weapon upon the person of his intended victim, there is only preparation, and not an attempt. For the preparation he may be held to keep the peace, but he is not chargeable with any intent to kill. So, in the present case, the declarations and elopement and request for a magistrate were preparatory to the marriage; but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of marriage, it cannot be said in strictness (i.e., in a legal sense) that the attempt was made. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the party."

Whatever may been petitioner's intention, there is no testimony showing any overt act in an attempt to kill or injure, and the allegation of want of probable cause is therefore sustained.

For the reasons stated herein, we are of opinion that there is no legal authority for holding the petitioner in custody, and he must be discharged.

Writ of habeas corpus allowed, and petitioner discharged.

FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur.