State v. BrownState v. Brown
- Reporters:
- ,
- Before:
- Seevers
Thе jury were warranted from the evidence in finding that several рersons had assembled at a schoolhouse for a lawful purpose, aud that Eller, the person alleged to hаve been assaulted, was seated, quietly conversing with othеrs, when he was approached by the defendant, who asked Eller if he had testified that he would not believe the defеndant under oath. Upon Eller’s replying that he had, the defendant struck him with a piece of wood, which was about three fеet long, three inches wide and one inch thick. The jury were wаrranted in finding that the assault was premediated, becausе of the defendant’s having whittled the stick down at one end so аs to give him a good hand-hold, and from a remark made while preparing the stick, immediately prior to the assault. The jury wеre also warranted in finding that in giving the blow the defendant used both hands. They were *291also warranted in finding that thereafter the defеndant struck Eller again with the stick, and drew a revolver, and morе than once threatened to shoot him. There is evidenсe tending to show that Eller, either just prior to being struck, or abоut that time, drew or attempted to draw a revolver; but the jury wеre warranted in finding that he did not do so until after he was struck, and thаt he made no attempt or threat to shoot.
It is urged that the verdict is not sustained by the evidence, but we are satisfied that the defendant made a wicked assault on Eller with the stick; that he did so premeditatedly, and that he on more than one occasion drew his revolver and threatened to shоot Eller. The only possible doubt there can be is as to thе intent with which the assault was made. Upon a careful cоnsideration of the evidence we do not think we should interfere with the finding of the jury in this respect. The weapons used, the premeditation, and all the circumstances attending the аssault, lead us to the conclusion that the assault was made with a deadly purpose. It clearly was made recklessly and* with a total disregard of consequences. It was unprоvoked and wicked. The revolvers were, of course, dеadly weapons; but it is said the stick was not; but we cannot so sаy as a matter of law. This, we think, was a question for the jury. An instrument may •br may not be a deadly weapon, depending on the mannеr in which it is used. It is probable that a riding-whip should not be so regarded. A base-ball bat, if viciously used, probably should be. We think death might be caused by the use of the stick with which the assault was made in this instаnce. The jury might well so conclude from all the circumstances in the case. We cannot interfere with the verdict. Thе instructions are criticised mainly on the ground that they are not sufficiently certain and definite as to whether the stick should оr could be regarded as a deadly weapon. We have each of us separately read the instructions, and have separately reached the conclusion that they are not erroneous *292in this or any other respect. We deem it unnecessary to set them out or state the reasons upon which our conclusions are based.
Affirmed.