State v. Mier, 9311
| Decision Date | 13 October 1952 |
| Docket Number | No. 9311,9311 |
| Citation | 74 S.D. 515,55 N.W.2d 74 |
| Parties | STATE v. MIER. |
| Court | South Dakota Supreme Court |
John Carl Mundt, Sioux Falls, for defendant and appellant.
Harry J. Eggen, De Smet, Ronald R. Johnson, De Smet, Ralph A. Dunham, Atty. Gen., Phil Saunders, Asst. Atty. Gen., for plaintiff and respondent.
The defendant was tried under an information charging an assault with a dangerous weapon. The jury returned a verdict guilty of simple assault and defendant has appealed.
The facts established are as follows, when viewed in the light of the testimony most favorable to the verdict. Defendant had rented a farm from Theodore Johnson. There was no written lease. In August when defendant started combining the grain he called Johnson, advised him of this fact, and asked him to come to the farm and haul away his share of the grain. Johnson and his son Erling went to the farm and a dispute arose between them and defendant and his son regarding who should haul Johnson's share of the grain. The dispute developed into a fist fight. The Johnsons left and reported the incident to the State's Attorney, who contacted the sheriff and advised him to investigate. The sheriff together with the Johnsons went to the farm in the sheriff's car. Defendant was combining and as the sheriff's car approached the combine was stopped. The sheriff drove to eight or ten feet from the tractor. He testified as follows:
'As I opened the car door and started to get out Mr. Mier grabbed the firearm,--pointed the gun at me and told me to get in my car and get to going, which I did.'
The sheriff and the Johnsons testified that no word was spoken by either of them, and that neither of the Johnsons got out of the car. The sheriff further testified regarding the defendant's actions and appearance as he pointed the gun----
In view of the jury's verdict of simple assault, we accede to appellant's contention that the evidence establishes the gun was not loaded.
The appellant has presented twenty-five assignments of error. Several of the assignments question the court's interpretation of the law relating to an assault with a dangerous weapon, but inasmuch as the jury returned a verdict of simple assault these assignments relate to no error prejudicial to defendant. A number of assignments may be disposed of by restating established law in this state, as follows: The circuit court has jurisdiction to hear and try a case for simple assault. State v. Finder, 10 S.D. 103, 72 N.W. 97. A defendant may be charged and tried for an assault with a dangerous weapon and found guilty of a simple assault. State v. Finder, supra; State v. Wiley, 52 S.D. 110, 216 N.W. 866. SDC 13.2401 defines assault as follows:
'An assault is any willful and unlawful attempt * * * to do a corporal hurt to another.'
Under this statutory definition the pointing of an unloaded gun at another is an assault if the person at whom the gun is pointed had reasonable cause to believe it was loaded, and was put in fear of immediate bodily injury therefrom, under circumstances which would produce fear in the mind of an ordinary man. State v. Wiley, supra.
The appellant throughout the trial insisted and in this court contends that if an assault were committed it was justified. SDC 13.2402(3) provides that an assault is not unlawful, 'When committed either by the party about to be injured, * * * in preventing or attempting to prevent an offense against his person or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient...
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State v. Winckler
...put in fear of the immediate bodily injury under circumstances which would produce fear in the mind of an ordinary man. State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952); State v. Wiley, 52 S.D. 110, 216 N.W. 866 (1927). Fear of immediate bodily injury need not be shown in instances where the......
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State v. Heumiller
...bodily injury. SDCL 22-18-1.1(5); SDCL 22- 1-2(9); See generally: State v. Westphal, 273 N.W.2d 155 (S.D.1978); 2 State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952); State v. Wiley, 52 S.D. 110, 216 N.W. 866 (1927). 3 For these reasons we believe the admission of the illegally seized evidence ......
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State v. Miskimins
...was rejected by the trial court. In the case of aggravated assault, justification and self-defense are one and the same. State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952). Jury instructions are to be considered as a whole, and if they correctly state the law and so inform the jury, they are s......
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State v. Marshall, 17715
...440 N.W.2d 721 (S.D.1989); State v. Pickering, 317 N.W.2d 926 (S.D.1982); State v. Heumiller, 317 N.W.2d 126 (S.D.1982); State v. Mier, 74 S.D. 515, 55 N.W.2d 74 (1952). In Heumiller, we held that a defendant may be charged and tried for assault with a deadly weapon and be found guilty of s......