People v. O'Connell

Daniels, J.

The defendant was indicted for feloniously making an assault with an axe upon Thomas Daly, and striking, beating, cutting, and wounding him, and thereby intending to kill him; and he was permitted, with the assent of the district attorney, to plead guilty of an attempt to make such assault, and was thereupon sentenced to imprisonment in the state-prison for the term of five years. If he had been convicted of the offense charged, his imprisonment would be not less than five nor more than ten years. Pen. Code, § 220. And for the attempt to commit the crime charged he was punishable for not more than half the longest time prescribed for the punishment of the crime attempted to be committed. Id. § 686, subd. 2. His punishment, therefore, will not exceed that to which'he subjected himself by his plea, if the act confessed by him has been made a crime by the laws of the state; and, if that was within the crime charged in the indictment, he could regularly, be convicted of it under this indictment, for upon an indictment for a crime the defendant may be convicted of an attempt to commit the crime charged. Id. § 35. In support of the appeal the objection has been raised that there is no such crime as an attempt to commit an assault in the first degree, which is an assault with a loaded fire-arm, or any other.deadly weapon, or by any other means or force likely to produce death, with the intent to kill the person assaulted. Id. § 217. To consummate this offense the law requires that the assault shall be actually made; and to make an assault it is necessary that the accused shall appear to have struck “at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or a bayonet, or even holding up the fist in a menacing manner, throwing a- bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual .violence against the person of another.” 1 Russ. Crimes, (8th Amer. Ed.,) 750. This statement of the law includes assaults as they may be variously committed, and its correctness is sustained by the authorities. People v. Ryan, 8 N. Y. Supp. 241. And in its application to the present appeal it was essential to the crime as it was charged in the indictment that the defendant should have struck at his adversary with the axe within reaching distance, for, if he did not, there would be manifestly no completed assault. Whether the assault charged be made by means of a fire-arm or any other deadly weapon, it is necessary for the creation of the crime that the person intended to be assailed shall not be so far from the intended assailant as to be beyond all possibility of injury from him. But that is not an essential circumstance in the case of an attempt, for the assailant may load a fire-arm, and then start towards the person to be assailed, in order to attain reaching distance of him; or, when the assault is intended to be made with an axe,—which is the weapon mentioned in the indictment,-—the accused may obtain and raise it, intending to strike with it, when too far away from the person intended to be struck, and then approach towards that person, and be intercepted before he can reach a position of danger to him, which would be an attempt to commit the crime charged. Each act would be an attempt to commit the crime charged, for “an act done with intent to commit a crime, and tending, but failing, to"effect its commission, is an attempt to commit that crime.” Pen. Code, § 34. For a person to provide an axe, with which he intends to kill another, and afterwards approaches towards him to make that use of it, but is prevented from doing so by the flight of the other, or by being himself disarmed or otherwise prevented from reaching his intended victim, are acts tending to effect the commission of the crime, within the language of this section of the Code. They are steps in the progress of the crime, but rendered unavailing by others frustrating and defeating the execution of the intention upon which the person himself had commenced directly to act. The case thus presented is more than a mere intention, which would not be punishable. McDade v. People, 29 Mich. 50; People v. Murray, 14 Cal. 159. It would be an intention coupled with acts appropriate, although not insuring its execution; and that would be an attempt to perpetrate the crime intended to be committed, for that may be affirmed of some physical act sufficiently proximate to the résult to be caused as to stand either as the first or some subsequent step in the actual endeavor to bring about or accomplish the result. McDade v. People, supra, 55. And so the law has been declared by a standard authority, in which it is said that “so long as an act rests in” bare intention it is not punishable, but immediately when an act is done the law judges not only of the act, but of the intent witli which it is done; and, if accomplished with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.” 1 Russ. Crimes, (8th Amer. Ed.) 46. And that was stated to be the law in People v. Moran, 7 N. Y. Supp. 582, and it has been since established by the final decision of the same case, 123 N. Y. 254, 25 N. E. Rep. 412. In the present case, if the defendant approached Daly with the axe in his hand, that of itself would not have been a criminal act; but to approach him in that manner, intending to kill him with the axe, when he should be so near as to be able to effect that intent, would be clearly criminal, and constitute an act in the way of committing an assault in the first degree. To make the assault itself it was necessary that he should be so near as to be able to strike him, and should attempt to do so. To make an attempt to assault him required no more than that he should arm himself with the axe, and endeavor to place himself in the position to use it by executing bis intention to kill. There is a clear distinction between these cases. The first would be the crime itself, the other an attempt to commit it; and that would bring the defendant within the range of the indictment, which included all attempts to commit the assault. It does not and could not appear from the plea of guilty of the attempt how that attempt was in fact made; but, as the attempt.could be committed, it is to be inferred from the plea that the defendant had committed it in some manner in which that could be done, and had thereby made himself amenable to punishment under the law. Whether that was done in the way in which it has been stated the attempt might be made, or in some other equally effectual manner, is not important to the ease. It is sufficient that the attempt could bo committed, and the defendant by his plea confessed himself guilty of it. The judgment consequently is free from all ground of error, and should be affirmed, as Mr. Justice Lawrence has in his opinion concluded.

Van Brunt, P. J., concurs.