¶1 (concurring specially).
¶2 I am unable to fully concur in the opinion of Mr. Justice Hudspeth. It is therein stated that the information did not charge a crime und'er Sec. 41-611, “because it shows that a crime was committed by an assault, and it was not an attempt to commit the crime of murder by poisoning, drowning or strangling, which may be accomplished by assault.” (Emphasis mine.)
¶3 I agree that the crime of attempting to commit the crime of murder under Sec. 41-611 may be accomplished by an assault. To this extent we all repudiate the contention of appellant and the apparent holding of the Wisconsin court in Jambor v. State quoted from in the main opinion, and there is no reasoning supplied in lieu thereof.
¶4 Since it is conceded that an assault may be an ingredient of the crime defined in Sec. 41-611 it becomes important to scrutinize the language of the said section to ascertain whether it was the legislative intent to limit its scope to attempts to commit the crime of murder “by poisoning, drowning, or strangling.”
¶5 It is familiar law of statutory construction that effect shall be given to all of the words and phrases of a statute.
¶6 Sec. 41-606 (Assault with intent to murder) and Sec. 41-611 (Attempt to Commit Murder) were originally enacted as Secs. 26 and 27 of Ch. III of act 28 of the Laws of 1853-1854 as follows:
“Assault. Sec. 26. If any person shall assault another, with intent to murder, or to maim or to disfigure, or injure his person, in any of the ways mentioned in the next preceding section, shall be punished by imprisonment in the county jail or Territorial prison not more than five years, nor less than one year, or by fine not exceeding one thousand dollars nor less than fifty dollars.
“Assault, &c. Sec. 27. If any person shall attempt to commit the crime of murder, by poisoning, drowning, or strangling another person, or by any means, not constituting an assault with intent to murder, such offender shall be punished by imprisonment in the county jail or Territorial prison, not more than ten years, nor less than one year.”
¶7 The marginal notes indicate that either the Legislature or the editor preparing the matter for publication recognized that assault might be an ingredient of both offenses. Such seems to be the holding in the main opinion.
¶8 I cannot but think that the difference in punishment was arranged because the Legislature viewed with greater abhorrence the means employed such as poisoning, drowning or strangling and that the lawmakers believed that the employment of such means was attended with an irrebuttable presumption that a person attempting to commit murder by such means was acting with a deliberate and premeditated design indicating a depraved mind, which might not necessarily or invariably attend assaults with intent to murder by less obnoxious means and as more lightly punishable under Sec. 26.
¶9 The idea is not novel. There are certain “horror murders”, included in first-degree murders. For instance: “All murder which shall be perpetrated by means of poisoning or lying in wait, (or) torture,” are defined as first-degree murder. Sec. 41-2404.
¶10 If these means are employed deliberation and premeditation are conclusively presumed.
¶11 I think by Sec. 27, the Legislature had in mind to impose the severer penalty upon “horror attempts to murder,” and that such attempts by poisoning, drowning or strangling were meant to be illustrative and did not exhaust the class since they said that any person attempting to commit the crime of murder “by any means not constituting an assault with intent to murder” must be punished as therein provided. Since the main opinion does not eliminate assault as an ingredient of the crime of attempting to commit the crime of murder by poisoning, drowning or strangling, it is apparent that such attempt to commit murder would be punishable under the provisions of Sec. 27 notwithstanding that the proved facts might also constitute assault with intent to murder under Sec. 26, except for the fact of the legislative declaration to the contrary. In other words, the same evidence might establish both the offense of “assault with intent to murder” and the offense of “attempt to murder,” but the offense would fall within and be punishable under the provisions of Sec. 27 if committed by the means described therein, simply because the Legislature has said that it falls within and shall be punishable as provided in that section and not as provided in Sec. 26. Sec. 27 immediately after employing the phrase “by poisoning, drowning or strangling another person” goes on to say: “or by any means, not constituting an assault with intent to murder.” It is to be noted that this language does not necessarily exclude assault from the means employed, but only excludes means constituting an assault with intent to murder. An assault with intent to murder otherwise falling under Sec. 26, if the assault be by means described in Sec. 27, would be punishable under Sec. 27 and ergo an assault with intent to murder by any of the means described in Sec. 27 would be an attempt to murder and not an assault with intent to murder as contemplated by Sec. 26.
¶12 It may be well to call attention to' the fact that in 40 C.J.S., Homicide, Sec. 68, discussing attempts, it is said: “Distinguished from assault with intent to murder. It has been stated that there is very little substantial difference between an assault with intent to murder and an attempt to murder.”
¶13 This being so and the main opinion having conceded that an offender may be proceeded against under Sec. 27 notwithstanding that an assault is involved, the only significance I can discover in the words “or by any means, not constituting an assault with intent to murder” is to characterize the means thus referred to as being of the same kind as those theretofore specifically mentioned in the section, namely, by poisoning, drowning or strangling.
¶14 Since, we are all agreed that whether there has been an assault or not is not a determining ingredient of the offense under Sec. 27 (41-611), what significance must be given to the phrase, “or by any means, not constituting an assault with intent to murder”?
¶15 I think the answer to this question is to be found in the employment of the maxim of statutory construction known as ejusdem generis. To refresh our recollection, this maxim means according to 28 C.J.S., Ejusdem, 1049: “Literally ‘Of the same kind or species.’ A well-known maxim of construction, sometimes called Lord Tenterden’s Rule, to aid in ascertaining the meaning of a statute or other written instrument, the doctrine being that, where an enumeration of specific things if followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind. if. ifi * i>
¶16 If it be inquired what means unspecified would be considered as the same kind as those specifically enumerated, I would venture to look to our first-degree murder statute above cited and conclude that an attempt to commit the crime of murder by lying in wait or torture would be of the same kind and that any of the various kinds of torture could be assimilated to the class of horror attempts to murder specifically enumerated. Also, while there might be a technical distinction between strangling and smothering, I think an attempt to commit the crime of murder by smothering would •be a good illustration of means of the same kind as strangling, specifically mentioned in Sec. 27. An attempt to murder by smothering another person would doubtless also come within the purview of torture.
¶17 If the means employed satisfies the rule of ejusdem generis then there would be no greater reason to eliminate assault as an ingredient of accomplishment of attempt to murder by such means than if the attempt were made by poisoning, drowning, or strangling.
¶18 It is arguable that there is in this case evidence sufficient to show that the defendants attempted to murder Pedro Gonzales by means of lying in wait, torture and smothering and that they could be proceeded against under Sec. 27 (41-611).
¶19 However, the views presented in this opinion, if correct, were not adequately presented in the information nor in the instructions and for this reason I do not resist the decision in the main opinion to remand the case for further proceedings.
¶20 This opinion should not be closed without stating, that for the purpose of ascertaining the meaning of the act and the intent of the 1853 Legislature, I have disregarded the 1921 amendment increasing the penalty for the offense described in Sec. 26 (originally regarded as the lesser) and leaving unchanged the punishment for commission of the graver crime described in Sec. 27. I think this circumstance proves mothing except inattention on the part of the draftsman and does not aid us in anyway in construing the language employed ire Sec. 27.