State v. Shephard

• Decision Date: 25 October 1912
• Parties: STATE v. SHEPHARD.
• Court: South Dakota Supreme Court

30 S.D. 219

138 N.W. 294

STATE

v.SHEPHARD.

Supreme Court of South Dakota.

Oct. 25, 1912.

Appeal from Circuit Court, Meade County; Wm. G. Rice, Judge.

Roy Shephard was convicted of assault with intent to kill, and he appeals. Affirmed.

See, also, 136 N. W. 1088.

Harry P. Atwater, of Sturgis, for appellant.

Royal C. Johnson, Atty. Gen., M. Harry O'Brien, Asst. Atty. Gen., and Claude C. Gray, State's Atty., of Sturgis, for respondent.

McCOY, P. J.

Appellant was convicted of the offense of assault with a firearm with intent to kill one Perkett, and has appealed. alleging error. From the record it appears that appellant and Perkett met in the street in front of a hardware store in the town of Faith, Meade county; that appellant said something to Perkett about having made misrepresentations, whereupon Perkett called appellant a liar, and that he was there to back up his statement, and commenced taking off his coat; that appellant also commenced taking off his coat, but quit removing his coat and pulled a revolver, and struck Perkett twice over the head with the same; that, after being so struck, Perkett turned and fled into the hardware store, pursued by appellant. Bystanders interfered, and prevented appellant from entering the store, and endeavored to take the revolver from him. Perkett closed the door after him, but soon afterwards opened the door part way, so that his head was visible, whereupon appellant fired a shot at him with the revolver, the bullet striking near the side of the door near Perkett's head. At the time the shot was fired Perkett had a post hole auger in his hands. Appellant himself testified: “Perkett was standing in the door when I fired the shot, and, after I fired it, he jumped back. I had no intention of hitting him. I am an expert shot. I had no intention of shooting him or killing him. I had no purpose other than defending myself. I fired the shot to prevent him from coming out. I did not shoot at him, but to scare him, and keep him away from me. I did not shoot very close, could have shot closer. I was careful where I shot. I was 14 feet from him when I shot. The gun was a 44 Colts.”

[1] All assignments of error not mentioned or discussed by appellant in his brief will be deemed abandoned.

[2] On the trial Mr. Vanderley, proprietor of the store in which Perkett took refuge, on cross-examination, was asked by appellant's counsel the following question: “Mr. Perkett could have gone out the back door had he so desired?” To which question respondent's counsel objected as...