State v. Archer

• Decision Date: 09 April 1908
• Citation: 22 S.D. 137,115 N.W. 1075
• Parties: STATE v. ARCHER.
• Court: South Dakota Supreme Court

22 S.D. 137

115 N.W. 1075

STATE

v.ARCHER.

Supreme Court of South Dakota.

April 9, 1908.

Error to Circuit Court, Spink County.

Leo Archer was convicted of assault with intent to commit a felony, and he appeals. Reversed and remanded.Wm. Issenhuth, for plaintiff in error.

S. W. Clark, Atty Gen., and Roy T. Bull, State's Atty., for the State.

FULLER, J.

For an assault with intent to commit a felony plaintiff in error was sentenced to the penitentiary for a term of one year at the conclusion of his trial under an information which, omitting formal requisites, reads as follows: “That at said time and place said Leo Archer willfully, unlawfully, and feloniously did an assault make upon the person of one Bertha Ligenfelter, with the intent then and there to have unlawful voluntary sexual intercourse with the said Bertha Ligenfelter, said Leo Archer being then and there a single man, and the said Bertha Ligenfelter being then and there a married person of the opposite sex, and not being then and there the wife of said Leo Archer.” That the facts stated in the information do not constitute a public offense was an issue of law presented below by a demurrer, and no other question requires consideration in this court.

As defined by our statute, an assault is “any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another,” and the aggravated assault, punishable by imprisonment in the penitentiary, must be perpetrated with the intent to commit a felony. Rev. Pen. Code, §§ 297, 298, 310. To constitute such an assault, the attempt or offer to do a corporal hurt to another must be without his consent and under such circumstances as to cause a well-founded apprehension of immediate peril. One who assaults or whips another at his request, “or with his consent does any other act which under ordinary circumstances would amount to an indictable battery, commits no crime.” 1 Bish. Cr. L. 260. Had plaintiff in error committed the intended act with the married woman named in the information, the offense would constitute adultery, of which both would be equally guilty under section 338 of the Revised Penal Code; but the crime requires the concurrence of consenting parties, and is not within the class of felonies susceptible of an aggravated assault. From the syllabus by the court in the case of People v. Bransby, 32 N. Y. 525, in which many English decisions are excerpted as supporting authority, we quote as follows: “A...