215 La. 40

#### STATE v. MURFF et al.

No. 39220.

Supreme Court of Louisiana.

Feb. 14, 1949.

Rehearing Denied March 21, 1949.

*818Cawthorn & Golsan, of Mansfield, for defendants-appellants.

Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., of Many, Jack L. Simms, Asst. Dist. Atty., of Leesville, and R. C. Gamble, special counsel, of Mansfield, for appellee.

HAWTHORNE, Justice.

Defendants, Jacob D. Murff, Joseph J. Anders, Jr., Marshall K. Bruce, and J. C. Deason, Sr., were convicted by a jury of attempted aggravated criminal damage to property, and were sentenced by the court to 18 months at hard labor in the state penitentiary. From these convictions and sentences they have appealed.

For a proper understanding of the various bills of exception taken in this matter, it is necessary that we give a short resumé of the facts as gathered by us from the trial judge’s per curiams, certain other portions of the record itself, and briefs filed by counsel. There does not seem to be any dispute as to these facts, and the ■trial judge informs us in one of his per curiams that each of the defendants made a full and complete statement or confession as to his participation in the series *oi*events which resulted in the charge of the crime of attempted aggravated criminal damage to property.

The four defendants resided in Caddo Parish, Louisiana. On the night of July 7, 1948, they went into DeSoto Parish for the purpose of damaging a passenger auto-bus owned and operated by Southern Bus Lines, Inc., their former employer and a *819public carrier. The bus traveled each night upon a regular schedule, and on -the night in question was travelling from Shreveport south on Highway 171.

The defendants brought with them 36 mowing machine blades, some three or four inches long, each of which had been pre-sharpened to a point, and welded at its base to a flat piece of metal to hold it upright when placed upon the pavement. Three metal rods, approximately three feet long, had been specially constructed to hold 12 blades each and, when placed on the highway, would cover one entire side of the 18-foot paved surface. Defendants intended to place these blades in the highway so as to cut the tires of the bus, causing them to go flat, and causing the bus to go out of control.

The defendants had arrived with the blades and the rods at the place along the highway where they intended to effect their purpose a short time before the bus was due to arrive, and. were waiting for it to come along so that they could carry out their plan. They had arranged a system of signals to assure the identification of the particular bus.

The crime was never completed because a farmer detected' the presence of one of the defendants near his home, and, becoming alarmed at his actions, began shooting. This defendant immediately fled, and the others, hearing the shooting, did likewise. All four were apprehended and brought to trial.

Bill of Exception No. 1 concerns a ruling of the trial judge in regard to the bond forfeitures in this case.

The defendants failed to appear for arraignment on October 14, 1948, and their bonds, over their counsel’s objection, were ordered forfeited on motion of the district attorney. Thereafter, on October 18, the defendants through counsel appeared in open court, and in behalf of each defendant a demurrer and motion to quash and a motion for a bill of particulars were filed, and counsel again moved that the bond forfeitures be set aside. Upon objection of the State, this last motion was overruled. Counsel for defendants then stated that they were ready to plead to the indictment, subject'to the ruling on the demurrer and the motion for a bill of particulars previously filed. After the court had acted upon the motion to quash and the motion for a bill of particulars, the defendants, waived formal arraignment and entered pleas of not guilty, and the case without objection was fixed for trial for October 22, 1948. On October 22, after the attorneys for both the State and the defendants had announced themselves ready for trial and the case was called,, counsel for defendants again moved that the bond forfeitures be set aside. This motion was-taken under advisement by the court. After trial, conviction, and sentence of the defendants, upon motion of the district attorney the bond forfeitures were set aside.

Bill of Exception No. 1 was taken to the overruling by the trial judge of defendants’1 motions to set aside the bond forfeitures which had been previously entered against all of them.

The trial judge in his per curiam sets forth that he knew of no law which required the court under the circumstances to set aside a forfeiture of these bonds; that the law applicable is Article 108 of the Louisiana Code of Criminal Procedure, the pertinent portion of which reads as follows: “Any judgment forfeiting an appearance bond rendered under the provisions of this article may, at any time within five days after rendition, be set aside upon the appearance, and trial and conviction or acquittal of the defendant, or upon a continuance granted upon motion of the district attorney after such appearance.” The judge then states that none of these conditions was complied with, and that the question had become moot, as the forfeitures had been set aside upon motion of the district attorney.

Counsel for defendants contend that the trial judge erred in his denial of their motions to set aside the forfeitures, and that this denial, in the presence of the jury, prejudiced these defendants because it was equivalent to a charge of fleeing from justice.

It is unnecessary for us to decide whether the trial judge erred in his denial of the motions, for after trial, as pointed *820out hereinabove, the forfeiture of these appearance bonds was set aside upon motion of the district attorney. Furthermore, on October 18 the case was fixed for trial for October 22 without objection, and on that latter date no objection was made to proceeding with the trial. Counsel themselves, for the first time in the presence of the jury, on that date moved that the forfeitures be set aside, and the trial judge did not deny this motion at that time but merely took .it under advisement.

We cannot agree that the judge’s denial of the motion was tantamount to a charge to the jury that the accused were fugitives from justice. Furthermore, counsel have not pointed out, nor do we know of, any legal rights of which these accused were deprived on the trial of the case on its merits before the jury by the trial judge’s rulings with reference to these bond forfeitures, and we do not think that defendants were in any manner prejudiced by such rulings.

The indictment in this case charges that the ' defendants “ * * * on or about the 7th day of July in the year of our Lord One Thousand Nine Hundred and Forty-eight at and in the Parish, District and State aforesaid: having a specific intent to commit a crime, did lie .in wait with dangerous weapons and in-strumentalities, to-wit: mowing machine blades, in the night time, on Highway 171 between Mansfield and Benson, in DeSoto Parish, Louisiana, for the purpose of and tending directly toward the intentional damaging of a passenger auto-bus occupied by several persons and owned and being operated by Southern Bus Lines, Inc., wherein it was foreseeable that human life might be endangered * *

To this indictment the defendants filed a demurrer and .motion to quash, which was overruled, and Bill of Exception No. 2 was reserved.

In brief filed, in this court counsel state that criminal attempt is a separate but lesser grade of the intended crime, and that the necessary specific intent must be to commit that particular offense; that the indictment in this case charges defendants with reference to intent as “ * * * having a specific intent to commit a crime * * that, since the indictment does not charge any specific intent to commit the crime of aggravated criminal damage to property or to commit any other specific substantive crime, it is invalid.

There is no merit in this contention. The specific intent charged in the indictment is to commit the crime of aggravated criminal damage to property, and the substantive offense is set forth in the indictment in the language of the statute defining it. A reading of the pertinent portions of the indictment shows that it charges that these defendants, having a specific intent to commit a crime, did lie' in wait with dangerous weapons and instrumentalities *for the purpose of and tending directly toward the intentional damaging of an auto-bus.*We consider this indictment suf-. ficient to charge a specific intent to commit the substantive crime which defendants were charged with attempting, and that any other interpretation would be a strained one.

Counsel next call our attention to the definition of “dangerous weapon” found in Article 2 of our Criminal Code, as follows: “ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

They then, state that mowing machine blades are not inherently dangerous, and that nothing in the indictment alleges their use in any manner; that, unless the indictment ' alleges that the so called dangerous weapons were used in some manner calculated or likely to produce death or great bodily -harm, it has failed to charge any crime under the criminal attempt statute, and that, for the indictment to come within-the provisions of-the statute, an allegation of . the manner of use of the mowing machine 'blades is necessary and essential.

In the' instant case the indictment is drawn in the language of Articles 27 and 55 of the Criminal Code, arid charges every necessary element or ingredient of the crime of attempted aggravated criminal damage to property.

*821Article 27 of the Criminal Code defines “attempt” as follows:

> “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

> “Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt’ to commit the offense intended.”

Article' 55 of the Louisiana Criminal Code reads:

> “Aggravated criminal damage to property is the intentional damaging of any structure, water-craft, of movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. * * * ”

As pointed out in the comment to Article 27, the elements of an attempt are a specific intent to commit a particular crime and an overt act done for the purpose of and tending directly .toward the accomplishment of the object. The article points out that mere preparation to commit a crime is not sufficient to constitute an attempt, but the article malees it clear that lying in wait with a dangerous weapon with the intent to commit a crime and searching for the intended victim with a dangerous weapon with the intent to commit a crime are in themselves overt acts, especially recognized by’ the statute, and shall be sufficient to constitute an attempt to commit the offense intended.

-The indictment in this case charges specific intent to commit the substantive offense intended, and further charges an overt act, specifically recognized by the statute to be such, that is, lying in wait with "a dangerous weapon, and it fully meets the test which this court has said is necessary to determine the sufficiency of an- indictment or information, that is:

> “1. Is thé indictment or information sufficient to inform the court what offense is being charged in order that the court might properly regulate the evidence sought to be introduced?

> “2. Does the indictment or information inform the accused of the nature and cause of the offense with which he is being charged ?

> “3. Is the indictment sufficient on its face to support a plea of former jeopardy in event there is an attempt to try the defendant more than once for the same offense?” State v. Ward, 208 La. 56, 22 So.2d 740, 741.

In State v. Humphries, 35 La.Ann. 966, the contention was made.that the omission from the indictment of the. statutory words *"with a dangerous weap.on’’*was of. such moment as to be fatal. In holding the indictment to be valid because the defendant was charged with “shooting”, which necessarily implies the use of a dangerous weapon, the court in that case made the following observation, which, we think is pertinent, and applicable here: .

> “Niceties in judicial construction of criminal statutes, such as that urged upon us here, were deplored by Lord Hale more than two centuries ago when he wisely and feelingly said, ‘that the strictness required in indictment's had grown to .be a blemish and inconvenience in the law and the administration thereof; and that more offenders escape by the over easy ear given to exceptions to indictments than by the manifestation of their innocence, and that the greatest crimes had gone unpunished by reason of these unseemly niceties.’ ”

The members .of the commission appointed to frame' our Code of Criminal Procedure .were 'apparently of the' same view as Lord Hale with reference to the construction of criminal statutes and the strictness required, of an indictment, as reflected by Article 227 of that-Code, which was adopted by the Legislature.

This .article is set out and an excellent discussion thereof is found in the case of *822State v. Dark et al., 195 La. 139, 196 So. 47, 52. In that case it was held that an indictment is sufficient if it charges the offense in the language of the statute when the statute creating the offense sets out the facts constituting it. We quote from the opinion in that case as follows: “ ‘The indictment must state *every fact and circumstance necessary to constitute the offense,*but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.’ Article 227, Code of Criminal Procedure. ‘It is sufficient to follow the words of the statute, when those words describe the act's constituting the offense with such precision and certainty as to fully inform defendant as to the *nature*of the charge against which he is to prepare his defense, and to furnish him a complete plea of autrefois acquit or convict, in bar of another indictment. *When a statute creating an offense sets out the facts constituting it, it suffices to charge the offense in the language of the statute,*but the use of the identical words is not sacramental, but sufficient, since any words may be used that will unequivocally convey the meaning of the statute, so that defendant cannot be misled as to the charge he is to answer, *the test being, was defendant fully informed of the crime with which he was charged, for nothing can be taken by intendment.’*1 Marr’s Criminal Jurisprudence 483, Section 325. If ‘ * * * the indictment is couched in the language of the statute, it is sufficient and sets forth a crime denounced by our laws.’ State v. Newton, 166 La. 297, 117 So. 231, 232. (Italics ours.)” See also State v. Sonier, 107 La. 794, 32 So. 175; State v. Kilshaw, 158 La. 203, 103 So. 740; State v. Goldstein, 187 La. 353, 174 So. 873; State v. Clark, 208 La. 1047, 24 So.2d 72.

Counsel contend, however, that this indictment should have been amplified to allege the use of the instrumentalities named as the dangerous weapons therein.

A somewhat similar problem has been before this court on various occasions in the past. For instance, in the case of State v. Beebe et al., 127 La. 493, 53 So. 730, it was contended that, since the indictment did not describe or name the weapon alleged to be a dangerous weapon, it was-fatally defective. We quote the following, from that case:

> “Defendant, charged with cutting and. wounding with a dangerous weapon, withi ‘the felonious intent * * * to kill and' murder,’ moved to quash the indictment,, on the ground that ‘it does not allege the kind and character, name and description: of the dangerous weapon with which the alleged assault was committed,’ and, the-motion having been denied, he reserved': a bill.

> “The indictment was framed under Rev; St. § 791, as amended by Act No. 43 of 1890, which reads (in part):

> “ ‘Whoever shall cut * * * any person *with a dangerous weapon,*with intent to commit murder * * * shall, on conviction, suffer imprisonment, at hard labor,, or otherwise, for not less than one, nor more than twenty-one .years.’

> *“The charge is in the language of the statute, and, we think, is sufficients** * * »

In that case this court pointed out that any instrumentality might be a dangerous, weapon, depending upon the use made of it, and that that question was one for the jury to determine, but that it was unnecessary to amplify the indictment to show the name, character, etc., of the weapon, used. '

In State v. Scott, 39 La.Ann. 943, 3 So. 83, 84, the contention was made that the indictment charging wounding less than mayhem was defective because the weapon named therein, a pocket knife, was not a. dangerous weapon. In disposing of this, contention this court said:

> “It may well be that the accused couldi not, under section 932, Rev.St., have been convicted for carrying a dangerous weapon concealed on or about his person, because a pocket-knife is not, eo nomine, a dangerous weapon; but *it does not follow, that*when, under section 794, Rev. St., the charge is that the accused did with such a knife feloniously inflict a severe wound, less than mayhem, *such weapon may not be considered by the court and jury as a dangerous weapon, by the use*
>       *823
>       *miade of it, within the meaning of that .section, particularly as the description of .the weapon is not necessarily required by the statute, which merely mentions a dan■gerous weapon,*i. e., any dangerous weapon, which may be so by its use or in itself.”

In State v. Brown, 41 La.Ann. 345, 6 So. 541, the information charged that the ■ defendant “did wantonly and maliciously, ■with a dangerous weapon, to-wit, a knife, feloniously inflict a wound less than may.hem”. In that case, as well as in State v. Scott, supra, the defendant was charged under Revised Statutes, § 794, which made it an offense for any one unlawfully and maliciously *with a dangerous weapon*to .inflict a wound less than mayhem upon .another person. The statute there, as well .as the attempt statute here under consideration, did not describe any particular kind ■of weapon as dangerous. In affirming the ■conviction in the Brown casé, this court in the course of its opinion said:

> “ * * * *j-fog statute does not describe any particular kind of weapon as dangerous, and the character of the weapon is a fact to be determined by the jury.** * *

> “The grievance of the offense in them [the statutes] is the inflicting of the wound less than mayhem; the stabbing, cutting, and thrusting; and it may be *well*left to the jury to determine the dangerous character of the weapon with which the wound is inflicted.”

In State v. Stewart et al., 117 La. 476, 41 So. 798, 802, the accused was charged in a bill of indictment with having cut *with ■a dangerous weapon*with intent to murder. In answer to one of the contentions raised therein, this court said:

> “The complaint of appellant that the court should [not] have permitted the witness Caffery to prove that the instrument with which he was cut was a razor, over his objection that such testimony was inadmissible under the recitals of the indictment which did not describe the character of the weapon used, is not well founded. Objection of no kind had been made to the indictment. When the case went to trial the evidence was admissible to show the cutting; whether the weapon used was a dangerous one was for the jury to determine. The indictment followed the language of the statute. The weapon used was not named, but the cutting was alleged to have been done ‘with a dangerous weapon.’ * * * ”

When the cases cited above were decided, the definition of a “dangerous weapon” was found in the jurisprudence, whereas now the same definition, broadened to include gas, liquid, or other substance or instrumentality, is found in Article 2 of the Criminal Code. Moreover, in none of those cases was the contention made that the manner of use had to be recited in the indictment. In these cases it was held that it was not necessary to *name the weapon*itself .in the indictment, that the words “with a dangerous weapon” were sufficient, and that the question of whether the instrumentality used was a dangerous weapon was dependent upon the use made of it and was a question for the jury to determine. But we consider the reasoning in those cases decisive of the issue here, so that, in the instant case, it is unnecessary for the indictment to allege the manner of use of the weapons.

The question of whether these instrumentalities were in fact. dangerous weapons was a question for determination by the jury on the trial of the case on its merits, and is not properly presented by means of a demurrer or motion to quash.

A thorough analysis of appellants’ brief shows that what they are really urging upon this court is that a weapon not inherently dangerous cannot be a dangerous weapon under the lying in wait provision unless it has been used, when they contend that, if the weapons or in-strumentalities named in the indictment, which are not in themselves inherently dangerous, have not been alleged to have been used, the charge then does not come within the lying in wait provision of the attempt article. The basis for this argument is the words “in the manner used” in the definition of dangerous weapons in Article-2 of the Code.

Bearing in mind Article 3 of the Criminal Code, which declares that all provisions of the-,Code shall be given a genuine construction according to the fair import of their words, taken in their usual sense, *824in connection with the context, and with reference to the purposes of the provisions, let us now examine Articles 2 and 27 insofar as they define “dangerous weapon” and provide that lying in wait with a dangerous weapon is sufficient to constitute an attempt, in order to ascertain whether they indicate any intention on the part of the lawmakers to attach to the words “in the manner used” the significance attached to them by counsel for defendants.

The purpose of the provisión in Article 27 relative to lying in wait is fully explained in the comment appearing after the article. The redactors of the Code considered that such conduct was sufficient to constitute an act beyond mere preparation, and, to prevent the confusion as to this matter which, as pointed out in the comments, exists in other jurisdictions, a provision was specifically inserted in the definition of the crime of attempt to make lying in wait with a dangerous weapon an act beyond mere preparation. A fair import of the words found in Paragraph 2 of Article 27, taken in their usual sense, in connection with the context, shows that the framers of the Code had in min,d distinguishing mere preparation from lying in wait with a dangerous weapon, but there is nothing to indicate that they intended by the above provision t'o distinguish lying in wait with a weapon which is inherently dangerous, or which has been used in a manner calculated or likely to produce death or great bodily harm, from lying in wait with a weapon which is just as dangerous potentially by virtue of the use which the one lying in wait intends to make of it.

Can such a distinction be made by reading the definition of “dangerous weapon” in Article 2 in connection with the lying in wait provision in Article 27? Again, here the reading of the comment to the article shows the purpose of the provision. Dangerous weapons were defined so that a very 'broad meaning would be given to the term, and so that no thing could be rejected as a dangerous weapon because of its substance or quality. If counsel’s construction of this definition in Article 2, which contains the words “in the manner used”, were correct, a serious question would be presented to this court We are of the opinion that to place such great emphasis on those words in the definition would, in effect, be saying that, an indictment charging lying in wait with an inherently dangerous weapon without stating that the weapon was used would not charge an offense, and would be invalid under Article 27, because, under a strict interpretation of the definition contained in Article 2, no instrumentality would be dangerous until used. Such a construction would defeat tire purpose and intent of the provisions of Article 27 relative to lying in wait, and would, in effect, write them out of the Code. This is true from the practical viewpoint -because, if a weapon has been used, the State would not be relegated to charging attempt under the lying in wait provision, for an act beyond lying in wait would have been committed.

We conclude, therefore, that for the purpose of the lying in wait provision of the attempt article an instrumentality, etc., may be a dangerous weapon if the one lying in wait intends to use it in a manner calculated or likely to produce death or great bodily harm.

For the purpose of clarity, let us restate that the statutes creating the offense charged set out the facts constituting it— that is, (1) the specific intent of any person, (2) while lying in wait with a dangerous weapon, (3) intentionally to damage •a movable, (4) wherein it is foreseeable that human life might be endangered. The indictment in the instant case, -being drawn in the language of the statutes, states every fact and circumstance to constitute the offense, and fully meets the test as to sufficiency laid down by this court in State v. Ward, supra.

Under the established jurisprudence of this court, as shown by-the cases cited and discussed hereinabove, which we think are decisive, it is necessary only for the indictment here to use the words “with dangerous weapons”, and the name of the weapons themselves could have been omitted. In case of such omission, the defendant could always, if necessary for his defense, ask for, and obtain, the nature of the weapons by means of a bill of particulars.

*825The question, therefore, of whether the instrumentalities designated in the indictment as dangerous weapons were actually dangerous weapons was a question of. fact for the determination of the jury on the trial of the case on its merits according to whether the manner of their use or intended use was calculated to produce death ■or great bodily harm, and was not properly presented here by means of the demurrer or motion to quash.

Prior to arraignment, counsel for nil defendants filed a motion for a bill of particulars, in which among other things they requested that the State inform them what passenger auto-bus was referred to in the indictment, what persons occupied it, and what human life, or lives it was foreseeable were endangered. ' In answer to this motion for a bill of particulars, the 'State set forth, among other things, that the bus referred to in the bill of indictment was owned and being operated by the Southern Bus Lines, Inc., and was being driven south on Highway No. 171, its terminal destination being unknown to the ■State; that the bus was scheduled to leave Mansfield at approximately 9:10 p.. m. on the date alleged in the bill of indictment; that the persons whose lives might be -endangered were several persons who were riding in the bus and the driver of the bus, whose names were unknown to the State.

Counsel for defendants objected to the sufficiency of the State’s answer for the reason that the position of the bus had not been definitely located therein. This objection was overruled by the court, and JBill of Exception No. 3 was reserved.

The trial judge in his per curiam states that it would have been impossible for the State to give a definite location of the bus, which was operating on schedule, at thé time these defendants took their respective positions on the highway shortly before the bus was to come along.

We do not think that a definite and fixed location of the bus at the time these defendants were stationed along the highway awaiting its arrival constituted an essential particular for the preparation of the defense in this case, and consequently in our opinion the trial judge did not abuse his discretion in overruling the objection. Furthermore, a reading of the motion for a bill of particulars discloses that no request was made therein by the defendants to fix definitely the location of the bus in question.

Bills of Exception Nos. 4 and 5 were taken to the overruling of defense counsel’s objections to questions propounded by the district attorney to two State’s witnesses.

Bill No. 4 does not have attached thereto the question objected to, its answer, or the court’s ruling on the objection. The trial judge’s per curiam informs us that the witness was asked whether he had seen a man at the scene of the crime and had shot at him as he ran away; that the question propounded was material, relevant, and proper in view of the evidence which had preceded the propounding of the question, and that one of the defendants subsequently admitted that he was the man who was present at the scene and had run away when this witness shot at him.

Article 500 of the Louisiana Code, of Criminal Procedure provides that the bill 'of exception must show the circumstances under which, and the evidence upon which, the ruling complained of is based, and, since the note of evidence is not attached to ‘this bill, we are not in a position to say that the low'er court erred in its ruling.

Bill No. 5 was reserved in connection with a question propounded by the district attorney to Hugh Bennett, a State’s witness, on re-direct examination. This question was: “Mr. Bennett, in answering the question asked you by defense counsel, why written statements were not taken down and filed in this case, I ask you what sort of statements you are referring to in your answer to his question?”

Counsel for defendant objected to this question on the ground that it was leading, and suggested to the court that no such question had been propounded to the witness -on cross-examination. This objection was overruled, a bill was reserved, and the district attorney then elicited the following testimony: “By Mr. Bennett: A. You want to know what I'meant by statements being taken down?

> *826“Q. Yes, in your answer to him [defense counsel], what were you referring to? A. What I was referring to, some of the officers wrote down the names and what might have been said when they were acknowledging to being on the highway and what they were there for.”

Article 377 of the Code of Criminal Procedure provides that the re-direct examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on, cross-examination, but that the application of this rule is within the discretion of the trial judge. In propounding these questions the district attorney in the present case was seeking explanations of statements elicited from the witness by defense counsel on cross-examination, and the questions were entirely proper.

Bills Nos. 6 and 7 were taken to the overruling by the trial judge of a motion in arrest of judgment and a motion for a new trial. These two bills simply reurge contentions which we have already discussed and answered herein, and present nothing further for our consideration.'

The convictions and sentences appealed from are affirmed.

HAMITER, J., dissents from refusal to grant a rehearing.

O’NIELL, C. J., does not take part.

HAMITER, Justice

(dissenting).

The indictment herein charges that the four defendants, on or about July 7, 1948, “ * * * having a specific intent to commit a crime, did lie in wait with dangerous weapons and instrumentalities, to-wit: mowing machine blades, in the night time, on Highway No. 171 between Mansfield and Benson, in DeSoto Parish, Louisiana, for the purpose of and tending directly toward the intentional damaging of a passenger auto-bus occupied by several persons and owned and being operated by Southern Bus Lines, Inc., wherein it was foreseeable that human life might be endangered.” Amplifying that charge the district attorney, through his answer to a motion for a bill of particulars, states (among other things) that, “ * * * The mowing machine blades referred to in the bill of indictment *were to be uced*by placing the same in the paved highway standing them¡ on a base to hold the blades up so as to cut the tires -on the bus causing them to go flat and the bus to go out of control.” (Italics-ours.) In a per curiam, attached to one-of the bills of exceptions reserved by defendants, the district judge comments on-the evidence adduced at the trial as follows-r

> “ * * * the mowing machine blades which *were in the process of being placed upon the highway and used*by these accused were specially prepared instruments in-which the points had been pre-sharpened. These blades *were in' the possession of*one of the defendants, and it was confessed ■by all of the defendants that these *were to be used*by placing them in three separate sticks with guides on them, and they have welded'to the base á ‘T’ which causes-them to stand upright on the highway. The three sticks with guides hold twelve blades each and are three feet long, which would cover.one entire side of the eighteen-foot paved highway. They were in the process of being placed on the highway by the four defendants, three of whom were present on the ground immediately before the bus was scheduled to arrive on the highway; two of whom were to use flash lights for signals and the other in a car operated for the purpose of advising of the appearance of the -bus.” (Italics mine.)

And the majority opinion herein observes :

> “ * * * Defendants *intended to place*these blades in *the*highway so as *to cut*the tires of the bus, causing them to go flat, and causing the bus to go out of control.” (Italics mine.)

From the foregoing (the indictment as amplified, the trial judge’s comment on the evidence, and the majority opinion), it is apparent that the defendants never assembled the mowing machine blades on sticks or placed them on the highway, in order to cut the tires of the bus, although they possessed the blades, at the time and place alleged by the state, to be *used*in such manner and for the -particular purpose set forth. This being true it is my opinion that defendants’ motion for a new trial, if not their motions to quash and in arrest *827•of judgment, should have been sustained. In the motion for a new trial the allegation ■was made, “That no evidence was adduced •in Court or presented to the jury that •defendants *Used*any weapon, and particularly mowing machine blades, in any manner calculated or likely to produce death -or great bodily- harm.”

In the brief filed on behalf of the state it is said:

> “The bill of indictment in this -case seeks ■to charge the defendants with Attempt To 'Commit Aggravated Criminal Damage To Property under the provisions of Articles *27*and 55 of the Louisiana Criminal Code, .Act No. 43 of 1942. * * * ”

Article 55 of the Criminal Code defines ■.the substantive offense of aggravated criminal damage to property as:

> “* * * the intentional damaging of •any structure, water-craft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.”

Article 27 of that Code, insofar as pertinent, states:

> “Any person who, having a specific intent to.commit a crime, does or omits, an ■act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the (offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

> “Mere preparation to. commit a crime ••shall not be sufficient to constitute an •attempt; but lying in wait with a dangerous weapon with the intent to commit a •crime, or searching for the intended victim with a dangerous weapon with the intent to ■commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

As to the interpretation to be given the provisions of our. Criminal Code we observed in the comparatively recent case of State v. Truby et al., 211 La. 178, 29 So.2d 758, 759, as follows:

> “It is so well settled that citation of authority is unnecessary that in Louisiana there are no common-law crimes, and that nothing is a crime which is not made so by statute.

> * * * ' * * *

“It is true, as stated' hereinabove, that in the construction of a provision of the Criminal Code the words used therein are to be taken according to their fair import, in their usual sense, in connection with the context, and with reference to the purposes of the provision. However, it is equally true that a penal statute must be strictly construed and cannot be extended to cases not included within the clear import of its language, and that nothing is a crime which is not clearly and unmistakably made a crime. Articles 3 and 7, Louisiana Criminal Code; State v. Breffeihl, 130 La. 904, 58 So. 763, 40 L.R.A., N.S., 535, and authorities therein cited; State v. Comeaux, 131 La. 930, 60 So. 620.”

In the later case of State v. Vallery et al., 212 La. 1095, 34 So.2d 329, 331, this court made reference to a Tulane Law Review treatise prepared by one of the draftsmen of the Criminal Code wherein he criticized the Truby decision, and, in answer to the suggestion that the rule of strict interpretation, should not be applied to the provisions of the Code, we said:

> “With all due respect to the opinions entertained 'by the learned trial judge and the author of this treatise, we think the error in their ratiocination lies in the fact that under our basic law no one can be held accountable, or subjected to criminal prosecution, for any act done by him unless and until that act has been denounced as a crime and has been made punishable in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct is such that it falls within the purview of the act intended to be prohibited.”

With this rule of strict construction in mind let us consider the mentioned Article 27, along with the indictment and facts of this case, under the provisions of which the defendants were sought to be charged with an attempt and were convicted for it.

The first paragraph of the article, it is noticed, prescribes two elements essential to constitute an attempt to commit an ‘offense. One of these is the existence of *828a specific intent to commit the crime, and the other is the performing of an overt act, either of omission or commission, tending *directly*toward the accomplishing of the accused person’s object. These defendants, according to the record before us, did possess the specific intent to commit the crime defined and denounced by Article 55. However, the second essential element — defendants’ performing of an overt act tending directly toward the execution of that intent — was neither charged in the indictment nor disclosed by the trial judge’s per curiam relating to the merits. The assembling by defendants of the small individual mowing machine blades on the sticks and placing them on the highway, even though the bus never arrived at the place in question, would have been such an overt act; but, as before shown, that did not take place.

The state seemingly concedes that defendants committed no overt act in connection with the specific intent which they entertained. It relies, however, on that provision of the second paragraph of Article 27 reading, “ * * * but lying in wait with a dangerous weapon with the intent to commit a crime * * * shall be sufficient to constitute an attempt to commit the offense intended”; and it contends and argues that the mowing machine blades, which admittedly are not inherently dangerous, fall within the definition found in Article 2 of the Criminal Code that “ ‘dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, *in the manner used,*is calculated or likely to produce death or great bodily harm.” (Italics mine.)

By this definition, obviously, the Legislature intended to classify as dangerous weapons all of those substances and instru-mentalities not ordinarily or inherently dangerous that are rendered dangerous by the manner in which they are ■ actually used; they, in other words, ■ become dangerous weapons if and when, and only when, they are actually used as such. Thus, if the mowing machine blades involved in this cause, which ordinarily and inherently are not dangerous, had been assembled and placed on the highway (actually used) in a manner calculated and likely to produce great bodily harm to the passengers of the bus (even though the bus never reached or neared the scene) they, in that event, would have become and would be classified as dangerous weapons. But until so used they could not be termed, under the quoted definition of Article 2 of the Criminal Code, dangerous weapons.

That the blades were never used as dangerous weapons is made clear by the record. As 'Stated in the district attorney’s answer to the motion for a bill of particulars, “The mowing machine blades referred to in the bills of indictment were *to be used*by placing the same in the paved highway standing them on a base *to hold*the blades up * * Further, as pointed out above, the per curiam of the trial judge (referring to the merits) recites : “These blades were *in the possession*of one of the defendants, and it was confessed by all of the defendants that these *were to be used*by placing them in three separate sticks with guides on them * * (Italics mine.)

Since the blades, therefore, were never used in a manner rendering them dangerous weapons, these defendants did not violate the portion of Article 27 of the Criminal Code, relied on herein by the state, which provides that lying in wait with a dangerous weapon with the intent to commit a crime shall be sufficient to constitute an attempt to commit the offense intended. Rather, their actions (standing on the highway with the unassembled blades in the possession of one of them, although with the specific intent to use those blades in causing damage to the bus) are covered, in my opinion, by the first sentence of paragraph 2 of said Article 27 which reads: “Mere preparation to commit a crime shall not be sufficient to constitute an attempt”.

It cannot be gainsaid that the specific intent or plan entertained in concert by these defendants was atrocious and most reprehensible. Perhaps, in view of that intent and the preparation made to carry it out, they could - and should have been charged, tried and convicted for the offense of criminal conspiracy. But a specific intention to commit a crime, no matter how heinous it may be, is insufficient *829íoí a conviction of an attempt under Article 27 of the Criminal Code unless there is present also the other essential discussed above and provided for in such article. To obtain the result sought herein by the state and that which has been reached by the trial court and by a, majority of the members of this court, it is necessary, to change materially the definition of dangerous weapon found in Article 2 of the Criminal Code. Instead of applying the definition as written: “Dangerous weapon includes any * * * instrumentality, which, *in the manner used,*is calculated or likely to produce death or great bodily harm”, it must be changed to read: “Dangerous weapon includes .any * * * instrumentality, which, in the manner *intended to be used,*is calculated or likely to produce death or great bodily harm.” That this change has been effected in reaching the majority decision is clearly shown by the following extract from the supporting opinion: “We conclude, therefore, that for the purpose of the lying in wait provision of the attempt article an instrumentality, etc., may be a dangerous weapon if the one lying in wait *intends to use it*in a manner calculated or likely to produce death or great bodily harm.” The ’adding of the words “intended to be” to the definition certainly is not in keeping with the doctrine of strict construction announced in the Truby and Vallery cases, supra, in the latter of which we specifically said: “Courts can do no more than interpret and construe statutes. They cannot, under the guise of intrepretation, assume legislative functions.” (Italics mine.)

It seems appropriate to point out here that the discussed definition is important with respect to numerous crimes, denounced in the Criminal Code, in which the possession of a dangerous weapon is an element; it is not confined in its application to the instant alleged offense. And if the interpretation placed on it by the majority is adhered to much confusion is likely to result in the future. Thus, “Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, *while anted with a dangerous weapon.”*Article 64. Now let us suppose that a person commits a theft from another, by use of force, he at the time having in his pocket an unopened pen knife placed there with the specific intention of using it on his victim but which was never withdrawn. In such a case has that person committed armed robbery or only simple robbery, theft by force or intimidation, but not armed with a dangerous weapon — Article 65 ? Under a literal or strict construction of the definition of a dangerous weapon the offense would be simple robbery, for the pen knife (which is not inherently dangerous) was never used. But under the interpretation announced by the majority opinion it would be armed robbery, because the person *intended to use*the knife in a manner calculated or likely to produce death or great bodily harm. The same illustration is pertinent also to the crimes of simple and aggravated battery, simple and aggravated assault, burglary in the night time or day time and simple burglary.

Interesting, and with which I have no quarrel, are the several cases cited in the majority opinion in support of the holding that the defendants’ motion to quash and demurrer were correctly overruled, namely: State v. Scott, 39 La.Ann. 943, 3 So. 83; State v. Brown, 41 La.Ann. 345, 6 So. 541; State v. Stewart et al., 117 La. 476, 41 So. 798; State v. Beebe et al., 127 La. 493, 53 So. 730. As. correctly pointed out they announce the doctrine that the indictment need not name or describe the dangerous weapon alleged on, the employing of the .words “with a dangerous weapon” being sufficient, and that the question of whether the instrumentality used was in fact a dangerous weapon is for the jury’s determination. But those cases are not at all applicable here. Therein the indictments specifically alleged cutting, wounding, etc., showing clearly that the offending instrumentalities had actually been used in producing bodily harm. The instant indictment as amplified names and describes the alleged dangerous instruments as mowing machine blades, which are not dangerous per se, and then discloses that those blades were never used in a manner calculated or likely to produce bodily harm.

I respectfully dissent.