170. 82-180 (l3) 

IN THE SUPREPlE COURT OF THE STATE OF MONTAMA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsADAM WEITJBERGER, 

Defendant and Appellant. 

A~peal from: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Ajpellant : 

Piloses Law Firm; Stephen Moses argued, Billinys, 

14ontana 

For Res2ondent: 

Eon. Mike Greely, Attorney General, Helena, P,llontana 

Chris Tweeten argued, Asst. Atty. General, Eelena 

James McCann, County Attorney, Wolf Point, Montana 

Submitted: May 12, 1983 

Decided: October 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 ~.2d 679. 

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 --- not the a6t of killing. The 

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 didnl t, 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, ------ but I seen Adam with the chain, he swung the 

chain, I looked at Scotty and Scotty had --- the bat 

------- and he zit the cay and I never -- seen the chain hit 

Scotty, _ I r just 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. 

'IQ. And by that what do you mean? A. He just 

swung it. 

'IQ. 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 2:20 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 - to attempt. 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 45-4-103 (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 45-5-202 (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-uudaq Chief Justice 

We concur in the foregoing dissent by the Chief Justice.