State v. Weinberger

170. 82-180 (l3)

I N THE SUPREPlE COURT O THE STATE O MONTAMA
F F

1983

STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

-vs-

ADAM WEITJBERGER,

D e f e n d a n t and A p p e l l a n t .

A ~ p e a lfrom: District Court of t h e F i f t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f R o o s e v e l t ,
The H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For A j p e l l a n t :

Piloses Law F i r m ; S t e p h e n Moses a r g u e d , B i l l i n y s ,
14ontana

For Res2ondent:

Eon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , P,llontana
C h r i s Tweeten a r g u e d , A s s t . A t t y . G e n e r a l , E e l e n a
James McCann, County A t t o r n e y , Wolf P o i n t , Montana

Submitted: May 1 2 , 1 9 8 3

Decided: O c t o b e r 6 , 1983

Filed:
OCT 6 - 'I983

-- 7

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Adam Weinberger appeals to this Court from a judgment of
conviction against him of deliberate homicide based on jury
verdict, the judgment having been entered in the District
Court, Fifteenth Judicial District, Roosevelt County. We
reverse his conviction for the reasons hereafter stated.
Adam Weinberger was charged in District Court with two
counts of deliberate homicide. In count one, he was charged
with aiding or abetting Arrow Weinberger in causing the death
of Floyd Azure in violation of sections 45-5-102(1) (a) and
45-2-302 ( 3 ) , MCA. In count two, he was charged with felony
murder, in that the death of Floyd Azure was caused while
Adam Weinberger attempted the crime of aggravated assault, a
felony, in violation of sections 45-5-102(1)(b), 45-4-103 and
45-5-202 (1)(c), MCA.
The jury returned a verdict of guilty against Adam
Weinberger under count two, the felony-murder charge. The
jury returned an inconclusive verdict as to count one,
finding Adam neither guilty or not guilty of the charge of
aiding and abetting Arrow Weinberger in the death of Floyd
Azure. Because the jury failed to find Adam guilty on count
one, we regard the inconclusive verdict as one of not guilty
on that count. It has so been treated by the parties.
We reverse the conviction in this case because we find
that the evidence is insufficient as a matter of law to
support the judgment and conviction of felony-murder.
Before we review the evidence, it is well to set out the
applicable requirements for conviction for felony-murder,
where the defendant is not the actual killer, but is charged
with felony-murder because he is engaged in committing a
felony in conjunction with the actual killer so as to cause
of death of the victim.
In State ex rel. Murphy v. McKinnon (1976), 171 Mont.
120, 126, 556 P.2d 906, 910, we said:
" [W]e note with approval the following guidelines
as to the applicability of the felony-murder rule
stated in 1 Wharton's Criminal Law and Procedure
(Anderson) section 252, P. 543:
"'For the felony murder rule to apply, it is
necessary that the homicide be a natural and
probable consequence of the commission or attempt
to commit the felony; that the homicide be so
closely connected with such other crime as to be
within the res gestae thereof; or the natural or
necessary result of the unlawful act; or that it be
one of the causes.. ..
"Something more than a mere coincidence of time and
place between the wrongful act and the death is
necessary. It must appear that there was such
actual legal relation between the killing and the
crime committed or attempted that the killing can
be said to have occurred as a part of the
perpetration of the crime, or in furtherance of an
attempt or purpose to commit it.'"
"Thus for the felony-murder rule to apply a causal
connection between the felonious act and the death
must be present. (Citing cases.)'' (Emphasis added.)

1n State v. Close (1981)I - Mont . ,
- 623 P.2d 940,
38 St.Rep. 177, we held that felony-murder and the underlying
felony charge do not merge, and sustained convictions as to
both criminal charges.
It should be recognized that all who participate in a
crime or an attempted crime during which a homicide is
committed are guilty of deliberate homicide, irrespective of
which one of the participants fires the fatal shot, State v.
Miller (1932), 91 Mont. 596, 9 P.2d 474 (construing earlier
statutes).
All conspirators in a plot to commit a crime are equally
guilty of deliberate homicide if during the course of the
commission of the crime a death results which is directly
attributable to the plot to commit the crime. State v.
Morran (1957), 131 Mont. 17, 306 ~ . 2 d679.
By statutory defini-tion, felony-murder is a deliberate
homicide which is committed while the offender is engaged in
the commission of an enumerated £el-ony, or "any other felonv
which involves the use or threat of physical force or
violence against any individual." Section 45-5-102(1) (b),
MCA . It follows, therefore, that if the proof of the
commission of the underlying felony fails, the purported
offender is not guilty of felony-murder.
The underlying felony with which Adam is charged in this
case is the offense of attempted aggravated a.ssault.
Aggravated assault in this case, excluding portions of the
statute not applicable here, would be upheld if the State
proved :
" [the defendant committed] the offense of
aggravated assault if he purposely or knowingly
causes:

"(c) reasonable apprehension of serious bodily
injury in another by use of a weapon." Section
45-5-202 (1)(c), MCA.

He committed the offense of attempted aggravated

assault, if, with the purpose to commit that specific
offense, he did any act toward the commission of that
offense, section 45-4-103, MCA.
As we stated in State ex rel. Murphy v. McKinnon, supra,
there must be a causal connection between the felonious act
and the death. Our statutes define causal relationship in
section 45-2-201, MCA. Conduct, under that statute, is the
cause of a result if without the conduct the result would not
have occurred.
In capsule, then, in order for the State to convict Adam
Weinberger of deliberate homicide under the felony-murder
rule, it was the duty of the State to prove (1) that Adam
Weinberger acting in concert with Arrow Weinberger knowingly
or purposely attempted an aggravated assault upon Scotty
Azure; or (2) that Adam and his father, Arrow Weinberger, had
a pact, design or common plan to commit an aggravated assault
or homicide upon Scotty Azure, and that Scotty died as a
result of their execution of such common plan. In either
case, it was the duty of the State to prove that Ada.mls
attempted aggravated assault caused the death of Scotty
Azure, without which cause Scotty's death would not have
occurred.
"It is not the purpose of the felony-murder rule to
foist authorship of a homicide upon a felon; the purpose is
merely to clothe the felon's act of killing with malice." 2
Wharton's Criminal Law (14th ed.) 221, S 149. Under Montana
codes, we would substitute "knowledge or purpose" for the
word "malice. " Section 45-2-103, MCA. The Pennsylvania
Supreme Court noted in Commonwealth v. Redline (1958), 137

"In adjudging a felony-murder, it is to be
remembered at all times that the thing which is
imputed to a felon for a killing incidental to his
felony is malice and - - - of killing. The
not the a6t
mere coincidence of homicide and-felony &
is not
enough to satisfy the requirements of the
felony-murder doctrine. 'It is necessary ...
to
show that the conduct causing death was done in
furtherance of the design to commit the felony.
Death must be a consequence of the felony ...
and
not merely coincidence.' (Citing authority.)"
(Emphasis in original.)
 Against this backdrop of applicable law, we now advert
to the facts in this case, regarding them in the light most
favorable to the State.
Floyd "Scotty" Azure was shot to death by Adam's father,
Arrow Weinberger, during the confrontation at a gas station
in Culbertson, Montana, on December 5, 1981.
Scotty Azure and his wife, Gloreen, were the parents of
a 17 year old daughter, Luanne, who had developed a
relationship with Adam Weinberger in June 1981. The parents
did not approve of this relationship and actively discouraged
it because of the difference in age between Adam and Luanne
and because of Adam's failure to "act like a gentleman."
Despite the parents' objections, however, the relationship
between Adam and Luanne continued. In early November 1981,
Luanne left home with a friend and went to Havre, Montana.
She there planned to and later did meet with Adam in
Williston, North Dakota. During the two days of her absence,
Luanne's parents searched the Poplar area for her without
success. On November 12, 1981, the parents went to Williston
to look for Luanne. There they found Adam who told them he
had not seen Luanne and thought she was in Havre, Montana.
The Azures later found Luanne in Williston and learned she
had, in fact, been with the defendant.
After this incident the parents began to watch Luanne
very closely because they did not want her around Adam
Weinberger at all. On December 1, 1981, Luanne ran away from
home. The Azures were convinced she had again run away with
the defendant based on the prior incident in Williston, and
they began to search for Adam, enlisting the aid of local law
enforcement officers. At the request of the Azures, the
police stopped the father's automobile to look for Luanne.
The father and son later visited the Azures to register their
displeasure at being stopped. Arrow Weinberger, the father,
was upset and told the Azures he did not like to get upset
because "when I get upset I stay upset."
Two days later, Luanne had not been found. The Azures
continued to look for her and on the second day found Adam in
the company of Maybell Archambeau, an 18 year old girl. The
Azures asked Maybell if she was permitted to talk to Adam.
Adam used a profane expression in telling the Azures to get
out of there. That evening, the Azures contacted Roy
Trottier, a federal Indian police officer, and sought his
help.
The next morning, Scotty Azure learned that Luanne had
been seen with the defendant on December 1, 1981. The Azures
immediately found Trottier and told him that if they found
the defendant they would report his whereabouts to the police
and then if they found Luanne they would bring her to the
police. Trottier approved of the plan. The Azures then
began a search for Adam's car, enlisting the aid of Carol Lee
Azure, who was Gloreen Azure's sister, and Rodney Azure,
Carol Lee's husband and a cousin of Scotty Azure. Carol and
Rodney found Adam' s car in Brockton that afternoon and
notified the police. The police, however, were unable to
locate Adam. Carol and Rodney then attempted to locate
Gloreen and Scotty. They met the parents' car following
Adam's car on the Fort Kipp Road and turned around to follow.
After the cars turned toward Culbertson, the entourage was
passed by the father's (Arrow Weinberger) white Cadillac. At
a signal from Adam, Arrow pulled off to the side of the road
to stop and talk to Adam. The two Azure cars proceeded past
the two stopped cars into Culbertson where they stopped at
the Standard gas station. When the Weinberger cars stopped
at the side of the road, there were four occupants of the
cars. Arrow Weinberger, the father, was accompanied by his
brother Frank. Adam was accompanied by a hitchhiker named
Thomas Hanzlick. Hanzlick remained in the defendant's car as
Adam went over to talk with Arrow Weinberger. Frank
Weinberger who was apparently intoxicated, had no
recollection of the stop. Hanzlick testified at the trial
that when Adam returned to his car from talking with Arrow,
Adam told Hanzlick that Arrow Weinberger was going to talk to
the Azures. Hanzlick concluded there "might be a fight."
Lenny Barkie, a passing motorist, saw the cars pull away from
the shoulder at a high rate of speed and testified that the
occupants of the father's car (Arrow Weinberger) were
"laughing to beat heck."
At the gas station in Culbertson, Scotty Azure parked
his car facing the side of the building to the right of a red
pickup truck. Rodney Azure parked some distance behind the
pickup. Gloreen and Carol Lee Azure proceeded to the front
of the gas station while Rodney and Scotty Azure remained
outside. As this was occurring, Arrow Weinberger's Cadillac
was driven up and parked directly behind Scotty Azure's car,
blocking it in. Adam followed and parked at an angle to the
right of Azure's car. The testimony of what happened next is
in conflict. The State's witnesses, Gloreen, Carol Lee, and
Rodney Azure all testified that Scotty Azure stood between
his car and the pickup as Arrow Weinberger, the father, got
out of his car. They testified that Adam then crossed
between the Azure car and Arrow Weinberger's car toward the
pickup saying "get your bat out, Azure." The witnesses saw
Adam reach into the back of the red pickup and grab a large
chain lying there.
The State contends that the evidence shows that Adam
doubled the chain over and threw it at Scotty Azure; that
Scotty Azure had procured a baseball bat from his car, and he
used it to deflect the chain; that Arrow, the father, then
drew a .25 caliber pistol and shot Scotty Azure once in the
chest, who died instantly.
After the shooting, the defendant, Adam, entered the
station building and spoke with Gloreen, telling her, "I hope
you are satisfied, you caused all of this trouble." Later
Adam and his father were transported to the sheriff's office
for questioning. Adam was seated in the front seat of the
car while Arrow sat between two other persons in the back.
At one point in the trip, Adam turned around and stated
"that's one and four to go," (Scotty and Gloreen Azure had
four sons). At the station, Hanzlick was interviewed after
the Weinbergers. After his interview, he sat down next to
Adam, who asked him what he had told the police. When
Hanzlick told the defendant that his story was consistent
with the Weinbergers, Adam smiled, laughed, and said "all
right. I
'
The foregoing are the facts essentially upon which the
State claims that Adam committed the underlying offense of
attempted aggravated assault. We have reserved, however,
from the foregoing statement the testimony of the witnesses
respecting the incident with the chain, because it is upon
that evidence that the commission of the underlying felony
depends, and because the evidence does not measure up to the
State's claims.
 The first witness was Gloreen Azure, the widow of the
victim and the mother of Luanne, who observed the actual
shooting through the windows of the gasoline station. In her
testimony she mentioned nothing that connected Adam to the
confrontation except that he was there.
Rodney Azure, the cousin of the victim, was standing
beside the box of the red pickup to the right of the Azure
vehicle when Adam came to the back of the pickup. He was the
person closest to Adam Weinberger during the incident, and
his testimony is pertinent. He stated:
"Q. When did the car driven by Adam Weinberger
pull in there then? A. Just a little while after
his father pulled in.
"Q. Was he out of the car at the time Arrow
Weinberger told Scotty to leave his son alone? A.
I don't know, I didn't at the time pay any
attention.
"Q. Did you see Adam Weinberger get out of his
car? A. He walked up to where we were.
"Q. Excuse me? A. He walked to where we were.
"Q. Was that before or after Arrow Weinberger told
Scotty to leave his kid alone? A. After.
"Q. Did he say anything as he was walking up to
where you were? A. He was walking and he told
Floyd to 'Get your bat now, Azure.'
"Q. And where did Adam Weinberger go? A. To the
back of the red pickup.
"Q. What did he begin to do? A. Looking around.
"Q. Did he find anything, or attempt to remove
anything from the pickup? A. Yes, he tried to
pull a chain out of the back of the pickup, over
the end gate.
"Q. Did he actually get ahold of the chain? A.
Yes he did.
"Q. What did he do with the chain? A. He pulled
it out of the pickup and was going to use it as a
weapon or something.
"Q. Rodney, where were you standing when Adam came
over to the back of this pickup? A. Right beside
the box of the pickup.
"Q. And in relationship to the rear wheel where
were you? A. Someplace close to it.
"Q. And where was the defendant Adam Weinberger
standing as he was reaching for the cha.in? A. He
was at the back end of the pickup.
"Q. Was Scotty in front of you or behind you? A.
Behind me.
"Q. And was Arrow Weinberger behind Adam or in
front of him? A. Behind him.
Q . And where wa.s he standing? A. By the car.
"Q. Wha.t part of the car? A. By the front wheel.
"Q. Now did Adam Weinberger retrieve all of the
chain out of the pickup? A. No.
"Q. How much of it? A. I would say he pulled it
three or four feet.
"Q. Now would you come down here and show me how
much he pulled it? A. (Witness complies)
Something like this.
"MR. RACICOT: Let the record reflect that
approximately three feet of the chain, doubled over
and hanging from the witness's hand.
"Q. What did he do with it? A. Well I thought
that he was trying to throw it.
"Q. Underhand style? A. No, to the side, like
this.
"Q. Swinging it? A. Yes.
"Q. At who? A. Scotty, I guess.
"Q. Did you see a.nybody put the -- wa.s he swinging
it like this? (Demonstrates) A. No.
"Q. Was it in a round about motion like this? A.
Yes.
"Q. What were you doing? A. Oh I tried to get
ahold of part of the chain, and I think I got ahold
of part of it, on the back end of it, but I can't
tell you how many feet.
"Q. Okay, YOU can be seated. (Witness sits down)
id the chain go towards Scotty? A. As far as I
know it did. I don't know for sure: I didn't see
what was hit.
"Q. Okay, did you see Scotty swinging the bat at
any time at Adam Weinberger? A. No I didn't.
"Q. Did you see him swinging it at any time at
Arrow Weinberger? A. No I didn't.

"Q. And when, did you see him do at that time, Sir?
A. Grabbed for the chain.
"Q. Grabbed the chain? A. Yes.
"Q. What was he doing when he grabbed the chain?
A. He pulled it out of the pickup.
"Q. One end pulled out of the pickup? A. He had
more then one end, he just grabbed a whole bunch of
it.
"Q. And then what did you do? A. I tried to reach
for the chain, and --
"Q. Now just a second. We have still got you up
here -- A. Well I moved over towards that pickup
again, when he started moving.
"Q. When Adam started towards the pickup, you
headed towards the pickup again? A. Well I went
over to see what he was looking for.
"Q. He did not have a weapon that you knew of
then? A. NO, not then he didnlt, that I knew of.
"Q. And did you know what Scotty was doing? A.
No I didn't see Scotty.
"Q. You had your back towards Scotty? A. Yes.
"Q. Now, Adam was standing here, and you're
standing just about where the wheel wells were, is
that right? A. Somewheres in that vicinity.

"Q. And he was pulling this chain out, this
particular chain out of the back of the pickup and
you grabbed one end of it, is that right? A. Yes.
"Q. And he was trying to pull it out of the back
end of the pickup and you got ahold of that other
end? A. Well I more or less pulled it -- as he
was pulling on it, I more or less just lifted it,
you know, and then he jerked it away from me.
"Q. Well what was Adam doing with this chain, he
has the chain and you say you were kind of lifting
your end of it up, and he was pulling on the other
end of it, wha.t did Adam do with this chain? A.
Took it away from me.
"Q. And so then when he had it out, he had a.bout
so much of the chain? (Demonstrates) A. I would
say a little less then that.
"Q. About that much then? A. Yes about that.
"Q. And what did he do with it then? A. Threw
it.
-
"Q. He is standing there facing the pickup -- A.
Well he had moved back away from the pickup by
then, a little bit.
"Q. How far? A. I don't remember how many feet,
I didn't notice how many feet.
"Q. Well did he move a short distance or a long
distance? A. A short distance I would say.
"Q. Short distance, say a couple of feet? A. Oh
maybe a little more then that.
"Q. Maybe three or four feet? A. Maybe.
"Q. Okay, and do you still have a hold of the
chain yet? A. Well I moved toward the end there.
"Q. Okay, and then what did he do with the chain,
with this couple of feet? A. Threw it.
"Q. Where did he throw it? A. Behind me
someplace.
"Q. Behind you someplace? A. Yes. At an angle.
"Q. He just sort of pivoted like this and gave a
toss that way? A. Well I think he had it bunched
up in his hand a little more than that.
"Q. Well what do you mean, by bunched up? A.
Like this. (Witness comes off the witness stand
and demonstrates.)
"Q. Okay, and then he threw it someplace? A.
Someplace.
"Q. I take it at this time, you were still on this
side of the pickup holding on to the chain? A. No
I was standing like this to him, and I had ahold of
the chain like this.
"Q. Okay, should we put the pickup here then, this
way, the pickup be here? A. Well --
"Q. Well the fact of it is here the chain is still
coming out of the back of the pickup, and you were
on the other end of it and started liftinq it up,
- -
is that right? A. Yes.
 "Q. So that you were facing into the pickup? A.
I was facing the side of the pickup, facing towards
the back.
"Q. This way, something of this nature, right?
(Demonstrates) A. Yes.
"Q. And Scotty was someplace over in here? A.
Yes.
"Q. And then he threw the chain? A. Yes.
"Q. And what did you do? A. I had a hold of the
chain, I heard this shot and dropped it and took
off.
-
"Q. You had ahold of the chain, he threw the
chain, out to here someplace, the shot was fired,
and you dropped the chain? A. Yes, I had it in my
hands like this. (Demonstrates)" (Emphasis
added. )
The next witness was Carol Azure, the wife of Rodney.
She was standing on the sidewalk between Scotty Azure's
vehicle and the red pickup, facing the actors. With respect
to Adam, she testified:

"Q. And did you see Adam Weinberger at that point?
A. Yes I did.
"Q. And where was he? A. He was coming towards
the pickup.
"Q. From where? A. From his car.
"Q. And how fast was he moving? A. I don't know
if he was moving so fast, but he was shaking, like
he was mad or scared, I don't know.
"Q. What did he say? A. All right, get your bat
now.
"Q. And where did he go? A. To the back of the
pickup.
Q . Now where was Scotty during all of this? A.
Scotty was standing by the cavity of his door.
"Q. Was the door open? A. At that point I don't
know, I was watching Adam.
"Q. Okay, was the door open when you first went up
to the sidewalk to enter the station? A. Yes it
was.
"9. Was it at any point closed, to the best of
your recollection? A. Not to the hest of my
knowledge.
"9. Okay. Now after Adam walked -- did he walk
between the white Cadillac and the blue car? A.
Right.
"Q. And said, 'come on, Azure, get your bat now?'
A. Yes.
"Q. After he said that, what did you next see? A.
I was watching him and he grabbing a chain out of
the pickup; and I don.'t know when Scotty got the
bat, - - -I seen Adam with the chain, he swung the
but - - -
chain, I looked at Scotty and Scotty h a d - bat
- the -
and - - - - -the c a y and I never - - chain hit
-- he zit seen the
_
Scotty, I just - - - - - -
r seen the bat hit the car.
"Q. And where wa.s Rodney, your husband? A. (No
response) .
" 9 . When Adam went to the back of the pickup, and
got the chain and threw it, where was Rodney? A.
It seems like he was right, maybe four feet away
from Scotty and Adam was on this side.
"Q. Okay, so as far as people being closest and
furtherest away from you, who was the closest to
you? A. They looked to me like they were about
the same distance.
"Q. Who did? A. Rodney and Adam. They were at a
different angle and it seemed like they were right
there.
"Q. And who was the closest person, between
Scotty, your husband, Rodney, Adam Weinberger and
Arrow Weinberger? A. Who was the closest to
Scotty?
"Q. Who was the closest to you? A. I would say
that Scotty was the closest.
"Q. And then who? A. And then Rodney.
"Q. And then who? A. Then Adam.
"Q. And then who? A. Arrow.
'Q. And did you see any struggle with the chain
between your husband and Adam Weinberger? A. I
seen his hand on the cha-in,but I don't know about
any struggle.
"Q. Did you see Adam Weinberger withdraw that
chain from the back of the pickup? A. I didn't
see him pull it out, I seen.him make a grab for it.
" 8 . Did you see him with any of that chain in his
hands? A. Yes I did.
"Q. How much? A. Three feet, I don't know.
"Q. Did you know -- or notice whether or not it
was doubled over was it just one single link? A.
I noticed that it was doubled.

"Q. And what did he do with that amount of chain
that he had in his hand? A. He swung it.

'Q
I. And by that what do you mean? A. He just
swung it.
'Q
I. And did you see where it went? A. It went
toward where Scotty was standing and I seen Scotty
hit the car with the bat.
"Q. And Scotty was holding the bat? A. Right.
"Q. And the bat did hit the car? A. Yes.
"Q. And the chain? What happened to the chain?
A. I don't know.

"Q. Then after the chain had been hurled at Scotty
and the bat hit the car, what did you next see? A.
I heard the shot.. . ."
On cross-examination, Carol testified:
"Q. And what did Adam do with this chain? A. I
seen him swing it.
"Q. How did he swing it? A. He just swung it.
"Q. Just like this? (Witness observes counsel
swinging the chain) A. Yes.
"Q. Like this out in front of him? A. Yes.
"Q. Did he swing at your husband? A. I don't
think so, no.
"Q. Did he swing at Scotty? A. I don't know.
"Q. And this distance you say of three or four
feet was Scotty right there? A. Yes.
"Q. Right about here? A. Yes.
"Q. Standing right there, within three or four
feet was your husband? A. Yes, but he was behind
my husband.
. How far behind Rodney? A. I don't know
exactly three or four feet I suppose.
"Q. Let me straighten this out a little bit on
this drawing here. Adam was standing back here by
the back end of this pickup? A. Yes.
 "Q. And Rodney then was three or four feet this
way, by the wheel well, is that right? A. Seems
like they were closer together when I seen them.
"Q. Right -- A. Not right together, but closer.
"Q. Rodney was up here? A. Yes.
"Q. Closer to the very back end of this pickup?
A. Yes.
"Q. And where was Scotty? A. By his car door.
"Q. He was back by his car door? A. Yes.
"Q. And from State's Exhibit Number 7, it shows it
is nine foot six inches away, is that right? A.
Yes.

"Q. So that Scotty wasn't where he could get hit
by Adam swinging that chain that way, could he?
A. I don't know."

On redirect examination, Carol testified:
"Q. What happened when he swung the chain? A. I
seen the chain swung, and I couldn't see where it
hit, --
"Q. Well what I am getting at, Carol did the
defendant, Adam Weinberger, or did he not, release
the chain when he swung it? A. I don't know.
"Q. Did the chain go anyplace? A. I don't know
that.
"Q. You didn't see the chain go like this?
(Counsel throws the chain its full length on the
courtroom floor)
"MR. S. MOSES: Objection, Your Honor, the witness
has already testified.
"Q. You didn't see that occur? A. No."
(Emphasis added. )

Dr. Robert Bell was an eyewitness to the incident. His
testimony respecting Adam is as follows:
'I. And around 2 : 2 0 in the afternoon, P.M., can
you tell us what you were doing? A. Well I come
out of my house to get a tape measure out of my
pickup.
"Q. On your way out, did you hear anything? A.
Yes, I heard a chain rattling -- somebody was
getting a chain out of a pickup.
"Q. Did that call your attention to where that
sound was coming from? A. When I heard the noise
I looked over to see what was going on and there
were two people in the vicinity of the back of the
pickup and they were getting a chain out of the
pickup.
"Q. And by the pickup, again in reference to
State's Exhibit No. 17, could you indicate if that
vehicle is on that diagram? A. Yes, it would be
where that red vehicle is indicated.
"Q. And you saw two people at that vehicle, and
where? A. At the northeast corner of it.
"Q. It would be to the right and to the top of
that picture. A. Yes, right.
"Q. And what did it appear to you that they were
doing? A. My first impression was that somebody
had gotten stuck and somebody was getting a chain
out of a pickup to pull them out.
"Q. Did it appear that both people were trying to
get the chain out? A. Yes.
"Q. How many people were leaning over the edge of
the pickup grabbing the chain? A. I think there
were two.
"Q. Did you watch those two people? A. Briefly.
It is not unusual for me to come out of my house
and see or hear some sort of activity at the
service station there.

"Q. And the man that was shot, did you see him with
the bat? A. I did not see a baseball bat a.t any
time until after the shooting.
"Q. Did you see him wield the bat at the man that
was doing the shooting? A. No I did not.
"Q. Did you see him threaten him in any way? A.
No I did not.

"Q. If I understand your testimony right, when you
came out of the house, you saw two fellows at the
back end of this pickup? A. Correct.
" Q . Trying to lift out a chain? A. Trying to
get this chain, right.
"Q. And that they were apparently having some
trouble getting the chain over the back end of this
pickup? A. I would not characterize that as
trouble. I think that is a normal occurrence
taking a chain out of a pickup.
 "Q. But the chain was running down out of the back
end of the pickup? A. I said it was rattling.
"Q. Oh, okay, it was rattling over the end of the
pickup? A. Right, I don't know if it was rattling
down or if they were backing up and pulling it out.
"Q. Did you ever see anybody swinging that chain
at anybody else? A. No I did not. I did not
continue to watch them with the chain.
"Q. All right. Were you watching this chain quite
intentively? A. Not at that time, no. As I
stated before, it is not unusual to have that kind
of activity at the service station there.
"9. So that you -- A. It is quite normal to see
people taking something like a chain or something
else out of a pickup, there at the station.
"Q. All the time? Every day you would see a chain
-- A. No, not all the time. But that day I saw
two people taking a chain out of a pickup."
(Emphasis added.)

Thomas Hanzlick, a passenger in Adam's automobile prior
to the incident, and a witness at the time of the incident,
testified with respect to Adam:
"A. And Mr. Azure was on the back swing, I
believe, I am not sure, I believe he was on the
back swing like this here (demonstrates) and he was
coming back towards Adam.
"Q. He was swinging now at Adam? A. I am not
sure.
"Q. And where did the swing go, do you know? A.
It was pretty close to Adam.
"Q. Do you know if he hit Adam? A. No I don't.
"Q. What happened to the chain? A. I am not
sure, the next of the chain that I saw it was lying
on the ground.
"Q. Did you ever see Adam Weinberger swing or
throw the chain? A. No sir.
"Q. Did you ever see him swing it or throw it
towards Mr. Azure? A. No sir.
"Q. Did you ever see him get it all the way out of
the pickup? A. No I think it was still partly
in." (Emphasis added.)
 There is not an iota of evidence in the record that Adam
knew before the shot was fired that Arrow had a gun
:.
~ s

available.
Adam Weinberger and Arrow Weinberger were tried together
in the same case. Arrow Weinberger testified as a defendant
in the case. Adam Weinberger did not testify. Nothing in
Arrow's testimony is informative as to what Adam may or may
not have done regarding the chain.
From the foregoing, it is clear: (1) the evidence fails
to show that Adam swung the chain at or toward Scotty on
testimony beyond a reasonable doubt; (2) there is no evidence
that Scotty suffered serious bodily injury, or bodily injury
as a result of Adam using a weapon; (3) there is no evidence
from testimony or otherwise, that Scotty entertained a
reasonable apprehension of serious bodily injury from the use
of a weapon. These are the essential elements of an
aggravated assault. Section 45-5-202, MCA. We will assume
in these conclusions, that the chain here may be considered a
"weapon," in the terms of the statute, since neither side
contests the point. The evidence completely fails to
establish an aggravated assault.
However, Adam was convicted of attempted aggravated
assault. The State contends his conviction must be upheld if
beyond a reasonable doubt he purposely and knowingly
committed any act toward the commission of aggravated
assault, section 45-4-103, MCA. The State had originally
charged Adam with aggravated assault. It is a mystery why at
the close of all the evidence, it moved the court for an
order submitting to the jury the case against Adam on
attempt, rather than aggravated assault. Undoubtedly, the
State felt that it could not show serious bodily injury or
bodily injury from the use of a weapon, two of the elements
that constitute aggravated assault. Section 45-5-202, MCA.
The State must also have felt that it failed to establish in
Scotty a reasonable apprehension of serious bodily injury
from the use of the chain as a weapon. There is no proof in
the record of what Scotty may have apprehended from Adam's
use of the chain. If there was proof in this case of
reasonable apprehension by Scotty beyond a reasonable doubt,
the crime of aggravated assault, itself would have been
proven and there would be no need for the State to change the
charge to an attempt. The question becomes, can the State
charge a crime of attempted aggravated assault, there being
no proof of serious bodily injury from the use of a weapon,
or reasonable apprehension on the part of the assaulted
person of serious bodily injury from the use of the chain as
a weapon?
There may be doubt that in the circumstances of this
case that there ca-n be such a crime as attempted aggrava-ted
assault. Our aggravated assault statute, section 45-5-202,
MCA, combines former statutes that related to the crimes of
assault and battery. Under the common law, battery was the
unlawful infliction of physical harm upon a victim. An
assault was the attempt to inflict serious physical harm upon
a victim. Thus to some theorists, a charge of attempted
aggravated assault would be an absurdity, a charge of an
attempt - attempt.
to In California and Colorado, there is no
such crime as attempted assault or attempted aggravated
assault. In re James M. (Cal.App. 1973), 510 P.2d 33; People
v. Gordon (Colo. 1972), 498 P.2d 431; Allen v. People (Colo.
1971), 485 P.2d 886, 888. In Oregon and in Florida, however,
the crime of attempted aggravated assault is recognized.
State v. Wilson (Ore. 1959) , 346 P. 2d 115; Hall v. State (Fla.ApP4
1978), 354 So.2d 914. And see People v. O'Connell (1891), 14
N.Y.S. 485.
In Montana, it has been held that if a defendant pointed
a gun at a victim which the defendant knew to be unloaded,
and the victim was put into fear and alarm because the gun
appeared to him to have the capacity to inflict physical
harm, an assault (not an attempt) was committed. It is the
object of the law to prevent such fear and alarm on the part
of the person assaulted. State v. Herron (1892), 12 Mont.
230, 235, 29 P. 819, 821. There the defendant did not have
the capacity to inflict physical harm upon the victim; yet
the proof showed the apprehension of the victim. Missing in
Adam's case is any proof of fear or apprehension on Scotty's
part from the actions of Adam in this incident.
If it were to be conceded that in Montana a knowing or
purposeful attempt by Adam to cast a chain at Scotty so as to
cause him bodily injury, or to raise in Scotty a reasonable
apprehension of serious bodily injury, would constitute the
crime of attempted aggravated assault, the proof here still
fails even in those respects.
Under the felony-murder rule, Adam's purpose and
knowledge to commit felony-murder would be presumed if in
committing an underlying felony involving the use or threat
of force or violence, he caused the death of Scotty. Section
45-5-102, MCA. Here the State recognized during trial that
the jury could not convict Adam of both the crime of aiding
and abetting Arrow in the homicide and the crime of attempted
aggravated assault. The District Court agreed. It
instructed the jury that as to Adam, if he were to be
convicted, it must be on one count or the other. The jury
failed to convict Adam on the count that he aided and abetted
Arrow. In other words, the jury seems to have found that
there was no common plan or design between Adam and Arrow to
make Adam an accomplice, an aider or abettor under count one.
We find as a matter of law that the evidence is insufficient
to show a common plan or design between Adam and Arrow under
count two. Since the evidence is insufficient to establish
the underlying felony of attempted aggravated assault, Adam's
purpose and knowledge may not be presumed as to the charge of
felony-murder. There is no other proof than that which we
have shown above in the record from which Adam's purpose and
knowledge may be inferred in connection with his actions
during the incident.
Further, in order for the felony-murder rule to apply,
the State must prove that the underlying felony was the cause
of Scotty's death. Adam's conduct can be the cause of
Scotty's death only if without Adam's conduct the result
would not have occurred. Section 45-2-201(a), MCA. Here
again, the case against Adam fails completely. It is as
compatible with the record to find that Arrow acted
completely independently of Adam in firing the fatal shot.
We therefore conclude that the conviction of Adam
Weinberger under the felony-murder rule for deliberate
homicide cannot be sustained. We reverse the conviction of
Adam and remand the cause to the District Court with
instructions to dismiss the charges against Adam Weinberger.
We Concur:

Chief Justice

Justices

I join in-Dhe,ppinion reversing the conviction and

ordering a dismissal. However, I have a separate concurring
opinion which will follow shortly.
Mr. Chief Justice Frank I. Haswell, dissenting:
I would affirm Adam Weinberger's conviction of
deliberate homicide in the killing of Floyd Azure.
The charge of which Adam Weinberger was convicted was
Count I1 of the amended information. In pertinent part, the
charge reads as follows:
". .
. the defendant committed the offense
of deliberate homicide ...
in that the
death of Floyd Azure was caused while
. .. the defendant, Adam Weinberger, was
purposely and knowingly engaged in the
attempted commission of the crime of
aggravated assault, a felony, which
involves the use or threat of physical
force or violence upon Floyd Azure in
violation of section 45-5-102(1)(b), MCA
... 11

Montana law defines deliberate homicide as criminal
homicide "committed while the offender is engaged in ...
any ... felony which involves the use or threat of physical
force or violence against any individual." Section

Attempted aggravated assault is a felony under Montana
statutes. A felony is defined as "an offense in which the
sentence imposed upon conviction is death or imprisonment in
the state prison for any term exceeding 1 year." Section
45-2-101 (21), MCA. Aggravated assault is punishable by
imprisonment in the state prison "for a term not less than 2
years or more than 20 years" plus a permissive fine of not
more than $50,000. Section 45-5-202(2), MCA. An attempt is
punishable "not to exceed the maximum provided for the
offense attempted." Section 45-4-103(3), MCA.
In my view the record discloses substantial evidence
that Adam Weinberger was engaged in attempted aggravated
assault involving "the use or threat of physical force or
violence" against Floyd Azure when Arrow Weinberger shot
Azure.
The facts set forth in the majority opinion demonstrate
a conflict, if not an animosity, between the two Weinbergers
on the one hand and the victim and his wife on the other over
the developing relationship between the Azures' daughter and
Adam Weinberger. These facts show an attempt by the parents
to locate the Weinbergers and through them to ascertain the
whereabouts of their daughter. They observed Adam on the
Fort Kipp Road and attempted to follow him and stop him in a
high speed chase but were unable to do so because Adam pulled
into the passing lane and would not let them pass.
Immediately thereafter, Adam was observed standing beside
Arrow's car talking to him. The hitchhiker, Hanzlick,
testified that Adam, after talking to Arrow, said there might
be a fight.
The victim pulled into the gas station in Culbertson.
Arrow and Adam followed him and blocked him in. Adam got out
of his car and told the victim to get his bat as Adam crossed
to the pickup and grabbed the logger's chain. Viewed in the
light most favorable to the State, as we must when reviewing
a conviction, the testimony of Rodney Azure indicates that
Adam started swinging about three feet of doubled over chain
"towards Scotty [the victim] I guess" but was prevented from
hitting the victim by Rodney who was holding the other end of
the chain. At that point Arrow Weinberger shot the victim in
the heart area from a policeman's stance.
Following the shooting, Adam said, "What do you expect?
They were tailgating us." In the deputy sheriff's car after
the shooting, Adam said, "that's one and four to go"
apparently referring to the victim and his four sons.
 The Montana statute on attempts provides that "[a]
person commits the offense of attempt when, with the purpose
to commit a specific offense, he does any act toward the
commission of such offense." Section 4 5 - 4 - 1 0 3 (1), MCA.
Adam's purpose to commit an aggravated assault is proven by
circumstantial evidence, viz., the conflict between Adam and
the victim over Adam's relationship with the victim's
daughter, the actions of Adam and Arrow Weinberger in
following the victim into the service station and blocking
his car from leaving the service station, Adam's invitation
to the victim to get out his bat, Adam's attempt to use the
doubled up logging chain as a weapon against the victim,
Adam's remark at the service station following the shooting,
and his statement "that's one and four to go" in the deputy
sheriff's vehicle.
The statutes defining aggravated assault as applied to
this case provides:
"A person commits the offense of
aggravated assault if he purposesly or
knowingly causes:

" (c) reasonable apprehension of serious
bodily injury in another by the use of a
weapon; " Section 4 5 - 5 - 2 0 2 (1)(c), MCA.
The jury apparently considered that Adam purposely and
knowingly caused a reasonable apprehension of serious bodily
injury in the victim when Adam attempted to use a doubled up
section of logging chain against the victim. The foregoing
evidence is sufficient to establish a purposeful and knowing
attempt by Adam to commit aggravated assault on the victim in
my view. It is likewise sufficient to show Adam's acts
toward the commission of an aggravated assault within the
purview of the attempt statute.
 The foregoing evidence is likewise sufficient to show
that the victim met his death as a result of the conduct of
both Adam and Arrow acting in concert within the meaning of
State ex rel. Murphy v. McKinnon, quoted by the majority, and
the guidelines set forth therein concerning the felony murder
rule. The totality of the evidence in this case indicates to
me a purposeful and knowing cold-blooded murder by Adam and
Arrow acting in concert.
For the foregoing reasons I would affirm the verdict of
the jury and the judgment entered thereon.

7i-uudaqChief Justice

We concur in the foregoing dissent by the Chief Justice.