State v. Wiley

• Decision Date: 20 December 1927
• Docket Number: No. 6372.,6372.
• Citation: 52 S.D. 110,216 N.W. 866
• Parties: STATE v. WILEY.
• Court: South Dakota Supreme Court

52 S.D. 110

216 N.W. 866

STATE

v.WILEY.

No. 6372.

Supreme Court of South Dakota.

Dec. 20, 1927.

Appeal from Circuit Court, Tripp County; John G. Bartine, Judge.

Alva Wiley was convicted of simple assault, and from the judgment, and an order denying a new trial, he appeals. Affirmed.P. A. Hosford, of Winner, for appellant.

Buell F. Jones, Atty. Gen., and Raymond L. Dillman, Asst. Atty. Gen., for the State.

MORIARTY, C.

The appellant, Alva Wiley, was tried on an information charging him with having committed an assault with a dangerous weapon.

Evidence was introduced by the state to show that the defendant, with a shotgun in his hands, advanced toward an automobile occupied by Tom Bowles and Lily Bowles, his wife, and aimed the gun at Mrs. Bowles in a threatening manner. The defendant testified that the gun was not loaded at the time, and there was no other evidence on that point. The undisputed evidence shows that the defendant did not approach nearer to the Bowles car than about 20 feet.

In his instructions to the jury the trial court included an instruction that:

“The mere pointing of a gun in a threatening manner at any person or persons would not constitute the crime charged in this information, unless the person so having said gun is within striking distance of the person or persons so threatened, if any, so that the gun could be used to inflict an injury by striking, or, if out of striking distance, unless the gun was at the time loaded.”

And also the further instruction that:

“Included in the crime charged in the information there is a lesser offense of simple assault which the court will submit to the jury. Simple assault could be committed by a mere attempt or offer with a shotgun whether loaded or not to do a corporal hurt to another, if within ordinary shotgun range, near enough to put the person assaulted, if any, in fear of injury.”

To each of these instructions the defendant entered timely exceptions.

The jury found the defendant guilty of simple assault, and from the judgment entered upon that verdict and an order denying a new trial the defendant appeals.

In his argument appellant's counsel makes the following statement:

“The entire appeal is based upon one proposition, and but one proposition is involved for consideration, and all of the assignments involve the one question, which is as follows:

Upon a charge of assault with a dangerous weapon, may a defendant be convicted of the crime of simple assault where the evidence in the case discloses that the defendant did not come within striking distance of the assaulted party, and the dangerous weapon was not in condition to be used as a weapon of offense unless used as a bludgeon?”

Section 4077 of the Revised Code of 1919 defines assault as follows:

“An assault is any willful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another.”

The appellant's counsel cites numerous decisions holding that to constitute...