170. 82-180 (l3) INTHE 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 forthe 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 ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Adam Weinberger appeals to this Court froma 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 deliberatehomicide. In count one,he was charged with aiding or abettingArrowWeinberger 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,inviolation of sections45-5-102(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 findAdam guilty on count one, we regard the inconclusiveverdict as one of not guilty on that count. Ithas so been treatedby theparties. We reverse the conviction in this case because we find that the evidence is insufficient as a matter of law to support the judgmentand conviction of felony-murder. Beforewe review the evidence, it iswell to set out the applicable requirements for conviction for felony-murder, where the defendant is not the actual killer,but is chargedwith felony-murder because he is engaged in committing a felony in conjunction with the actual killer so as to cause of death of thevictim. 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 itbe one of the causes.. 

# . . "Somethingmore than amere 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 orpurpose to commit it.'" "Thus for the felony-murder rule to apply a causal connection between the felonious act and the death must be present. (Citingcases.)'' (Emphasisadded.)

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 (construingearlier statutes). All conspiratorsin aplot to commit a crimeare equally guilty of deliberate homicide if during the course of thecommission 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. Theunderlying felonywith 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 thecause of a result if without the conduct the resultwould not have occurred. In capsule, then, in order for the State to convictAdam Weinberger of deliberate homicide under the felony-murder rule, it was the duty of the State to prove (1) that Adam Weinberger acting in concertwith Arrow Weinberger knowingly

or purposely attempted an aggravated assault upon Scotty Azure; or (2)thatAdam and his father, Arrow Weinberger,had

a pact, design or commonplan 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 killingwith malice." 2 Wharton's Criminal Law (14thed.) 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. Deathmust be a consequence of the felony

# . . . and not merely coincidence.' (Citing authority.)"

(Emphasisin 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 shotto 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 toWilliston 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. TheAzures were convinced she had again run away with the defendant based on the prior incident in Williston, and they began to search forAdam, 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 fatherand 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 stayupset." Two days later, Luanne had not been found. The Azures continued to look forher and on the second day foundAdam 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 seenwith the defendanton December 1, 1981. TheAzures immediately found Trottier and told him that if they found the defendant theywould reporthiswhereabouts to thepolice 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 ScottyAzure. 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 FortKipp Road and turned around to follow. After the cars turned toward Culbertson, the entourage was passed by the father's (ArrowWeinberger)white Cadillac. At

a signal fromAdam, Arrow pulled off to the side of the road to stop and talk toAdam. The twoAzure cars proceeded past the two stopped cars into Culbertson where they stopped atthe 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 ThomasHanzlick. Hanzlick remained in thedefendant'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 thatArrow Weinbergerwas going to talk to the Azures. Hanzlick concluded there "might be a fight." Lenny Barkie, apassingmotorist, saw the carspull away from the shoulder at a high rate of speed and testified that the occupants of the father's car (Arrow Weinberger) were "laughing tobeat heck." At the gas station in Culbertson, Scotty Azure parked his car facing the sideof 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 ofAzure's car. The testimony ofwhat happened next is in conflict. The State'switnesses, 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 "getyour bat out,Azure." The witnesses sawAdam 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 abaseball bat fromhis 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 stationbuilding and spoke with Gloreen,telling her, "Ihope you are satisfied, you caused all of this trouble." Later Adam and his fatherwere 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," (Scottyand 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 notmeasure 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 thewindows of the gasoline station. Inher 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 vehiclewhenAdam came to the back of thepickup. Hewas the person closest to Adam Weinberger during the incident, and his testimony ispertinent. He stated: 

### "Q. When did the car driven by Adam Weinberger pull in there then? A. Just a little while after his fatherpulled 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. Hewalked up towherewewere. "Q. Excuse me? A. He walked to where we were. "Q. Was that before or afterArrow 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 'Getyour 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 dowith the chain? A. Hepulled it out of the pickup and was going to use it as a weapon or something."Q. Rodney, wherewereyou standingwhenAdam came over to the back of this pickup? A. Right beside the box of thepickup. "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 thepickup. "Q. Was Scotty in front of you or behind you? A. Behindme. "Q. And was Arrow Weinberger behind Adam or in front of him? A. Behind him. Q. And where wa.she standing? A. By the car. 

### "Q. Wha.tpart of the car? A. By the frontwheel. "Q. Now did Adam Weinberger retrieve all of the chain out of thepickup? 

### A. No. "Q. Howmuch of it? A. Iwould 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 thewitness's hand. "Q. What did he do with it? A. Well Ithought thathewas trying to throw it. 

### "Q. Underhand style? A. No, to the side,like this. "Q. Swinging it? A. Yes. "Q. Atwho? A. Scotty,

### Iguess. "Q. Didyou see a.nybodyput the

## --wa.she 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 Igot ahold of part of it, on the back end of it,but I can't tellyouhowmany feet. "Q. Okay, YOU can be seated. (Witness sits down) 

## id the chaingo towards Scotty? A. As faras I know itdid. Idon't know for sure: Ididn't see what

### was hit."Q. Okay,did you see Scotty swinging the bat at any time atAdam Weinberger? A. No Ididn't. "Q. Did you see him swinging it at any time at Arrow Weinberger? A. No Ididn't.

"Q. And when,did you seehim 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. Hepulled it out of thepickup. "Q. One end pulled out of the pickup? A. He had more then one end,he just grabbed a wholebunch of it. "Q. And thenwhat did youdo? A. I tried to reach for the chain,and 

### -- "Q. Now just a second. We have still got you up here 

## -- A. Well Imoved over towards that pickup again,when he startedmoving. "Q. When Adam started towards the pickup, you headed towards the pickup again? A. Well Iwent over to seewhat hewas 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 Ididn'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 thewheel wellswere, is that right? A. Somewheres in thatvicinity. "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 thatright? 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, Imore or less just lifted it, you know,and then he jerked it away fromme. "Q. Well what was Adam doing with this chain,he has the chain and you say youwere kind of lifting your end of it up, and he was pulling on the other end of it, wha.tdid Adam do with this chain? A. Took it away fromme."Q. And so then when he had it out, he had a.bout somuch of the chain? (Demonstrates) A. 

### Iwould 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 thepickup 

## -- A. Well he had moved back away from the pickup by then, a littlebit. "Q. How far? A. Idon't rememberhowmany feet, Ididn't notice howmany feet. "Q. Well did he move a short distance or a long distance? A. A shortdistance 

### Iwould say. "Q. Shortdistance, 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 Imoved toward the end there. "Q. Okay,and thenwhat did he do with the chain, with this couple of feet? A. Threw it.



### "Q. Where did he throw it? A. Behindme someplace. "Q. Behind you someplace? A. Yes. At an angle. "Q. He just sort of pivoted like this and gave a toss thatway? A. Well I think he had itbunched up inhis hand a littlemore 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 thenhe threw it someplace? A. Someplace. "Q. I take it at this time,you were still on this sideof the pickup holding on to the chain? A. No Iwas standing like this tohim,and Ihad ahold of the chain like this. "Q. Okay, shouldwe put the pickup here then, this way, thepickup 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. Iwas 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 youdo? A. Ihad ahold of the chain, Iheard this shotand 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, Ihad 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 toAdam, she testified:

"Q. And did you seeAdam Weinberger at that point? A. Yes Idid. "Q. And where was he? A. He was coming towards thepickup. "Q. Fromwhere? A. Fromhis car. "Q. And how fastwas he moving? A. I don't know if he wasmoving so fast,but he was shaking, like he wasmad or scared, Idon'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 Idon't know, IwaswatchingAdam. "Q. Okay,was thedoor openwhen you firstwent 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, 'comeon,Azure, get your bat now?' A. Yes. "Q. After he said that,what did younext see? A. Iwas watching him and he grabbing a chain out of the pickup; and I don.'tknow when Scotty got the bat, but I seen Adam with the chain, he swung the ------ chain, I looked at Scotty and Scottyhad 

### --- the 

### bat and he zitthe cay and Inever seen the chainhit ------- -- Scotty,

# _ I r just seen the bat hit the car. 

### ------ "Q. And where wa.sRodney, 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 andAdam 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 samedistance. "Q. Who did? A. Rodney andAdam. 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. Iwould say that Scottywas the closest. "Q. And thenwho? 

### A. And then Rodney. "Q. And thenwho? 

### A. ThenAdam. "Q. And thenwho? 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.himmake a grab for it. "8. Did you see him with any of that chain in his hands? A. Yes Idid."Q. Howmuch? A. Three feet, Idon't know. "Q. Did you know 

## -- or notice whether or not it was doubled over was it just one single link? A. Inoticed that itwas doubled. "Q. And what did he dowith that amountof chain that he had inhis hand? A. He swung it. 'IQ. And by thatwhat doyoumean? A. He just swung it. 'IQ. And did you see where it went? A. Itwent toward where Scottywas standing and I seen Scotty hit the carwith 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. Idon't know.

"Q. Then after the chainhad been hurled at Scotty and the bat hit the car,what did you next see? A. Iheard the shot.. 

# .."

On cross-examination,Carol testified: "Q. And what did Adam do with this chain? A. I seenhim 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 frontof him? A. Yes. "Q. Did he swing at yourhusband? A. I don't think so,no. "Q. Did he swing at Scotty? A. Idon'tknow. "Q. And this distance you say of three or four feetwas Scotty right there? A. Yes. "Q. Right about here? A. Yes. "Q. Standing right there, within three or four feetwas 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. Rodneywasup 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'sExhibitNumber 7,it shows it is nine foot six inches away, is that right? A. Yes. "Q. So that Scottywasn't where he could get hit by Adam swinging that chain thatway, could he? A. Idon'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,AdamWeinberger, or did he not,release the chainwhen he swung it? A. Idon't know. "Q. Did the chain go anyplace? A. Idon'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." (Emphasisadded.)

Dr. Robert Bell was an eyewitness to the incident. His testimony respectingAdam 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 apickup."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, itwould be where that red vehicle is indicated. "Q. And you saw two people at that vehicle, and where? A. At thenortheast cornerof it. "Q. It would be to the right and to the top of thatpicture. 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 apickup to pull them out. "Q. Did it appear that both people were trying to get the chain out? A. Yes. 

### "Q. Howmany people were leaning over the edge of the pickup grabbing the chain? A. I think there were two. "Q. Did youwatch 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 theman thatwas shot,did you seehimwith the bat? A. I did not see a baseball bat a.tany time until after the shooting. "Q. Did you seehim wield the bat at the man that was doing the shooting? A. No Idid not.

"Q. Did you see him threaten him in any way? A. No Idid not.

"Q. If Iunderstand 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 apickup.

### "Q. But the chainwas running down out of the back end of the pickup? A. I said it was rattling. "Q. Oh, okay, itwas rattling over the end of the pickup? A. Right, Idon'tknow if itwas rattling down or if theywere backing up and pulling it out. 

### "Q.Did you ever see anybody swinging that chain at anybody else? A. No Idid not. I did not continue towatch themwith the chain. "Q. All right. Were youwatching 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 stationthere. 

### "9. So thatyou 

### -- A. It is quite normal to see people taking something like a chain or something else outof apickup, there at the station. "Q. All the time? Every day youwould seea chain 

## -- A. No, not all the time. But that day I saw twopeople taking a chainout of apickup." (Emphasisadded.) Thomas Hanzlick, a passenger in Adam's automobile prior to the incident, and a witness at the time of the incident, testifiedwith respect toAdam: "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 hewas comingback towardsAdam. "Q. He was swinging now at Adam? A. I am not sure. "Q. And where did the swing go, do you know? A. Itwas pretty close toAdam. "Q. Do you know if he hit Adam? A. No Idon't. 

### "Q. What happened to the chain? A. I am not sure,the next of the chain that I saw itwas lying on the ground. 

### "Q. Didyou ever seeAdam Weinberger swing or throw the chain? A. No sir. 

### "Q. Did you ever seehim swing it or throw it towardsMr. Azure? A. No sir. "Q. Did you ever seehim get it all theway out of the pickup? A. No I think it was still partly in." (Emphasisadded.)There is not an iota of evidence in the record thatAdam knew before the shot was fired that Arrow had a gun :.

~ s available. Adam Weinberger andArrowWeinberger 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 nothave 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 testimonybeyond a reasonabledoubt; (2) there is no evidence that Scotty suffered seriousbodily injury, or bodily injury as a result of Adam using aweapon; (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 chainheremay be considereda "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 contendshis 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 amystery 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 orbodily injury from the use of a weapon, two of the elements that constitute aggravated assault. Section 45-5-202,MCA. The Statemust alsohave 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 noproof 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 reasonabledoubt, the crime of aggravated assault, itself would have been proven and therewould 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 seriousbodily 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

aweapon? There may be doubt that in the circumstances of this case that there ca-nbe 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 assaultwas 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. InreJamesM. (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. InOregon and in Florida,however, the crime of attempted aggravated assault is recognized.Statev. Wilson (Ore. 1959)

## ,346 P.2d 115; Hallv. State (Fla. 

## ApP4 1978), 354 So.2d 914. And see Peoplev. O'Connell (1891), 14 N.Y.S. 485. InMontana, it hasbeen 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 (notan 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 ofAdam in this incident. If it were to be conceded that in Montana a knowing or purposeful attemptbyAdam 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 convictAdam of both the crime of aiding and abettingArrow 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 juryfailed to convictAdam 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 knowledgemay 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 fromwhichAdam'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 Statemustprove that theunderlying felonywas 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,ppinionreversing 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 FloydAzure. The charge of which Adam Weinberger was convicted was Count I1 of the amended information. In pertinentpart, the chargereads 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

# . .. felonywhich involvesthe use or threat of physical force or violence against any individual." Section

Attempted aggravated assault is a felonyunder 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 stateprison "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 orviolence" 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 hiswife on the other over the developing relationshipbetween 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 followhim and stop him in a high speed chase but were unable todo sobecauseAdam 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 thatAdam, after talking toArrow, said there might be a fight. The victim pulled into the gas station in Culbertson. Arrow andAdam followedhim andblocked him in. Adam got out of his car and told the victim to gethis bat asAdam crossed to the pickup and grabbed the logger's chain. Viewed in the light most favorable to the State, aswemust when reviewing a conviction, the testimony of Rodney Azure indicates that Adam started swinging about three feet of doubled over chain

"towards Scotty [thevictim] I guess" but was prevented from hitting thevictim by Rodney whowas holding the other end of the chain. At that point Arrow Weinberger shot the victim in the heart area fromapoliceman's stance. Following the shooting,Adam said, "Whatdo you expect? They were tailgating us." In the deputy sheriff's car after the shooting, Adam said, "that's one and four to go" apparentlyreferring to thevictim and his four sons.The Montana statute on attempts provides that "[a] person commits the offense of attemptwhen,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'svehicle. The statutes defining aggravated assault as applied to this caseprovides: "A person commits the offense of aggravated assault if he purposesly or knowinglycauses:



### "(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 thatAdam purposely and knowingly caused a reasonable apprehension of seriousbodily 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 attemptbyAdam 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 indicatesto

me a purposeful and knowing cold-blooded murder by Adam and Arrow acting in concert. For the foregoing reasons Iwould affirm theverdict of the jury and the judgmententered thereon. 

# 7i-uudaq Chief Justice

We concur in the foregoing dissent by the Chief Justice.