124 P. 775 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
The defendant was charged with committing an assault in the first degree upon one J. Roy Huntington by means of a rifle, described as a deadly weapon. At the close of the case for the prosecution, the trial court directed a verdict of not guilty, and the state has appealed.
The only evidence offered by the state at the trial was furnished by the witness James Wasson, corroborated in part by-Arthur Wasson, and the prosecuting witness, Huntington. James.,Wasson was Tile oltly. witness who assumed to detail all the facts and ciraimstances. H^testified that on July 18, J.911, Arthur Wasm, and Huntington were riding on horseback along a road, when the defendant \stepped from behind some
The motion for a directed verdict made by the defendant was based upon the ground that since there was not any evidence tending to show that the gun which Barry'had was loaded, or that he attempted to use it in any manner other than as a firearm, the evidence was insufficient to support a conviction for assault in any degree. This view was adopted by the trial court.
In every instance where an assault is charged to have been committed by means of a gun used as a firearm only, not as a club or bludgeon, and there is not any evidence as to whether the gun was loaded, a question arises upon which the courts are hopelessly divided. The difficulty‘arises in the attempt to dis^ tinguish between violence merely menaced and an assault. It is useless to. attempt to reconcile the decisions, even upon substantially the same facts. Some courts hold that, in the absence of proof that the gun was loaded, no offense is made out because there is no showing of a present ability to inflict injury which it is insisted is an essential element of the crime. Others hold that there is a presumption to be indulged that the gun was loaded, and'the burden is upon the defendant to overcome the
In Hochheimer’s Criminal Law, section 254, the rule is stated as follows: “Any attempt unlawfully to apply the least actual force to the person of another constitutes an assault. ¡The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about .to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention. It is the outward demonstration that constitutes the mischief which is punished as a breach of the peace. * * * If the offender presents a pistol within apparent range and threatens to shoot another, it is immaterial that the weapon is not in fact loaded, if the person threatened has reasonable cause to believe it loaded.”
In 1 "Wharton’s Criminal Law, tenth edition, section 606, the same rule is stated thus: “An offer to strike by one person rushing upon another will be an assault, although the assailant be not near enough to reach his adversary, if the distance be such as to induce the latter, under the accompanying circumstances, to believe that he will instantly receive a blow, unless he strike in self-defense. And one reason for this is that an attack appar
In Commonwealth v. White, 110 Mass. 407, the defendant was' charged with committing an assault upon one Harrington by the use of a gun. The trial court charged the jury “that an assault is any unlawful physical force partly or fully put in motion which creates a reasonable apprehension of immediate physical injury; and that if the defendant, within shooting distance, menacingly pointed at Harrington a gun, which Harrington had
^Applying the principle to the facts disclosed by the record,
We have not been called upon to consider whether this defendant might have been convicted of an attempt to commit an assault or of any other crime.
The order of the district court is affirmed. Affirmed.
Concurrence Opinion
I cannot concur in the final disposition of this case. The question whether the defendant was guilty of an assault in the third degree should have been submitted to the jury. The authorities cited by Mr. Justice Holloway, as I read them, so hold. I do not think the apprehension of a battery is necessarily confined to the person toward whom the weapon is directed. “It is the outward demonstration that constitutes the mischief which is punished as a breach of the peace.” Such apprehension may be excited in the breast of a third person, as was the case here. Any man is authorized to prevent a battery upon another, and if an assault is made by A upon B, who is ignorant of it, but under such circumstances as to excite apprehension, on the part of C, a bystander, that B is about to become the victim of a battery, it is the duty of C to interfere, and the offense on A’s part is complete. It is not the peace of B that is disturbed, but that of the public.