
    STATE, Respondent, v. RAINS, Appellant.
    (No. 3,802.)
    (Submitted March 15, 1917.
    Decided April 2, 1917.)
    [164 Pac. 540.]
    
      Criminal Law — Murder—Attempt—Information—Insufficiency —Witnesses—Competency—Husband and Wife.
    
    Attempt to Commit Murder — Insufficient Information.
    1. Information held insufficient to support a judgment of conviction under a charge of attempt to commit murder, in that it failed to allege some overt act which in the ordinary and likely course of events would result in the commission of the crime charged, and went no further than to show preparation to commit it.
    Same — Witnesses-—Competency—Husband and Wife.
    2. Under amended section 9483, Revised Codes (Laws 1915, Chap. Ill), a wife was competent to testify in a prosecution against her husband for attempted murder.
    
      Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.,
    
    Charles Rains was convicted of attempt to murder and appeals.
    Reversed and remanded.
    
      Messrs. Johnson & Tucker, for Appellant, submitted a brief; Mr. Park .Smith, of Counsel, argued the cause orally.
    
      Mr. J. B. Poindexter, Attorney General, and Mr. W. H. Poor-man, Assistant Attorney General, for Respondent, submitted a brief; Mr. Frank Woody, Assistant Attorney General, argued the cause orally.
   MR. JUSTICE SANNER

delivered the opinion of the court.

The principal question presented by these appeals is whether the information, upon which the appellant was tried and convicted of an attempt to commit murder, states facts sufficient to constitute that offense. Omitting the formal parts, the information is as follows:

“In the District Court of the Fourth Judicial District of the State of Montana, in and for the County of Ravalli. * # # Comes E. C. Kurtz, county attorney of said county, and * * * informs the court: That one Charles Eains, late of the county of Eavalli, state of Montana, on or about the 15th of October, 1915, at and in the county of Eavalli, in the state of Montana, did unlawfully, feloniously, and willfully, on purpose, and with his deliberate premeditated malice aforethought, attempt to kill and murder one- Elizabeth Eains, and in said attempt and toward the commission of said offense did, then and there, feloniously and with his premeditated malice aforethought, start to walk to the home of Elizabeth Eains, in the said county of Eavalli, state of Montana, and that upon meeting her, the said Elizabeth Eains, in and upon a private highway a short distance from her home, did then and there, on purpose and with his deliberate premeditated malice aforethought, intercept and stop her, and did strike her in the face, and did compel her to return to her home with him; that upon the arrival at the home of said Elizabeth Eains the said Charles Eains did deliberately and feloniously force her to enter her house, and did enter after her and lock the door, and take possession of the key to said door, all of which was done with the deliberate, premeditated, and felonious intent, then and there, upon the part of him, the said Charles Eains, to kill and murder the said Elizabeth Eains, he, the said Charles Eains, being at said time in the possession of a 38-caliber Iver Johnson revolver, loaded with cartridges containing powder and leaden bullets, and being in possession, at said time, of a 22-caliber special rifle, loaded with cartridges containing powder and leaden bullets, and being at said time in the possession of a bottle containing laudanum, by the use of all of which he, the said Charles Eains, having then and there the deliberate, premeditated, and felonious intent to kill and murder said Elizabeth Eains, did then and there attempt to do so. That said Charles Eains did then and there fail in the perpetration and commission of said offense, and was then and there prevented in the execution of the same, by the following facts: The said Charles Eains did take a water-pail and unlock the door and start to go to a near-by spring for the purpose of getting a pail of water; that- after stepping outside said house he locked the door from the outside, keeping the key to said door in his possession; that as soon as he stepped out of the said door the said Elizabeth Rains opened a window on the opposite side of said house, through which she escaped to a near-by neighbor. All of which is contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Montana.”

The appellant’s contention is that this document is inadequate to support the judgment, and we think he is correct. Our statute provides: “An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” (Rev. Codes, see. 8894.) And Mr. "Wharton, in his excellent work on Criminal Law (eleventh edition, section 212), thus enlarges upon this definition: “An attempt is an intended apparent unfinished crime. It must be intended, since it is of its nature that it should be committed in order to effect a specific criminal result. It must be apparent, since if it be obviously not likely to effect the result at which it aims (e. g., where a popgun is leveled at a ship, or a witch is employed to use enchantments), it is not indictable. It must be unfinished, as otherwise the indictment would be for the complete crime; but there must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” So, too, the more modern text in 6 R. C. L., page 279, says: “In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, shall have done some overt act adapted to, approximating, and which in the ordinary likely course of things would result in the commission thereof. Therefore the act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation.”

These criteria, which have the support of abundant judicial authority (People v. Murray, 14 Cal. 160; Hicks v. Common wealth, 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; Territory v. Reuss, 5 Mont. 605, 5 Pac. 885; People v. Moran, 123 N. Y. 254, 20 Am. St. Rep. 732, 10 L. R. A. 109, 25 N. E. 412; Commonwealth v. Tolman, 149 Mass. 229, 14 Am. St. Rep. 414, 3 L. R. A. 747, 21 N. E. 377, and note; State v. Hurley, 79 Vt. 28, 118 Am. St. Rep. 934, and note, 6 L. R. A. (n. s.) 804, 64 Atl. 78; note to People v. Moran, 20 Am. St. Rep. 741 et seq.), are accepted by the Attorney General, but he insists that overt acts, "appreciable fragments” of the offense designed, are alleged. The information tells us very carefully what the appellant did "in said attempt and toward the commission of said offense,” to-wit: He started to walk toward the home of Elizabeth Rains; he met her a short distance from her home, stopped her, struck her in the face, and compelled her to return; he forced her to enter her house and locked her in. All this was very wrong, particularly if done with the intent at some time to kill her, and for it he should be severely punished; but just how the death of Elizabeth Rains could be compassed by any or all of them, unless, after the manner of nations, he purposed to blockade her there until she should starve to death — which is not suggested — we are quite unable to see.

But it is said: "He armed himself with three deadly weapons, to-wit, a loaded revolver, a loaded rifle, and a bottle of laudanum.” The information states that he was so armed, but it does not charge that all or any of this panoply of war was actually used in any effort to accomplish the alleged design. The worst that can be said of it is that there was preparation. In People v. Murray, supra, the court, speaking through Mr. Chief Justice Field, said: "The evidence in this case entirely fails to sustain the charge against the defendant of an attempt to contract an incestuous marriage with his niece. It only discloses declarations of his determination to contract the marriage, his elopement with the niece for that avowed purpose, and his request to one of the witnesses to go for a magistrate to perform the ceremony. It shows very clearly the intention of the defendant, but something more than 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 toward 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 an attempt 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, 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.” And in Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024, which was a prosecution for attempt to murder by poison, wherein the defendant procured the poison and ineffectually solicited another to administer it, the supreme court of Virginia remarks: “It has been often held, under statutes similar to our own, 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.” (See, also, Stabler v. Commonwealth, 95 Pa. 318, 40 Am. Rep. 653; Regina v. Williams, 1 Car. & K. 589; Cox v. People, 82 Ill. 191.)

Singularly enough, when all the things alleged in the information had been done and the preparation was complete, the appellant took a water-pail and left the house to get some water, and while he was gone the victim escaped through a window, “contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the state of Montana.” Assuming this was sufficient to charge a frustration of the appellant’s design within the authorities above cited, what, upon the whole information, was that design ? Elizabeth Rains could die but once. Did the appellant intend to shoot her with the revolver, club her to death with the rifle, force the laudanum down her throat, or drown her in the water-pail? And if he intended any of these things, what act did he perform which would have accomplished the design, but for the interruption ? The fact is, the details so painfully set forth are unrelated to each other, are mutually exclusive, are unconnected with any accomplishment of the main purpose.

It may be, as urged by the state, that, had these things been omitted, the information would have been sufficient; they, however, were not omitted, but the pleader, by inserting them, limited and characterized his general allegations, so as to make them clearly ineffectual.

Some contention is made that Elizabeth Rains was incompetent to testify over the appellant’s objection; but there is nothing in this. (Section 9483, Rev. Codes, as amended by Sess. Laws 1915, Chap. 111, p. 248.) .

The judgment and order appealed from are reversed and the cause is remanded, with directions to discharge the appellant, so far as the present information is concerned.

Reversed and remanded.

Mr. Justice Holloway concurs.

Mr. Chief Justice Brantly, being absent, did not hear the argument, and takes no part in the foregoing decision.  