Uрon an information duly fined, charging the plaintiff in error with an assault with intent to commit murder, by the use of a deadly weapon, he was convicted of the crime of an assault with a sharp and dangerous weapon with intent to do- bodily harm. It is disclosed by the evidence that the plaintiff in error, who will hereafter be denominated the defendant, inflicted two wounds upon the person named in the information by means of a knife, about 8 inches in length and ij4 inches in breadth, one of which on the body near the sixth rib and the other just below the-left groin. It is also disclosed by the record that the defendant and injured party with a number of other young men had spent the evening, until about xi o'clock, at the house of оne Zurich; that the party broke up and on their way home engaged in snowballing, in which the defendant seems to have taken part; that the defendant, who lived near by, left the party and was gone two or three minutes, when he returned armed with a large knife, and almost immediately thereafter he stabbed the injured party with said knife, giving him the wounds above described. It is also disclosed by the record that the defendant, while at the house of Zurich with the others, drank quite freely and was somewhat intoxicated. It was the theory of the prosecution that, at the time he left the party, he-went to his house and procured the knife used in stabbing Bocich, and the evidence of the witnesses seems to havе warranted the correctness of this theory, as the knife was not of such a character as-is usually carried by persons on ordinary occasions. The principal!
1. On the trial of the case the state’s attorney called a number of witnesses, who testified fully as to what occurred at the time, immediately preceding, and immediately susequent to, the infliction of the injuries by the defendant upon the person of Bocich, and rested. The defendant then moved that the court require the state’s attorney to call other witnesses who werе present in court, to enable the defendant to cross-examine them. This request was denied by the court, and this refusal is assigned as error. It is contended by the defendant that it was the duty of the state’s attorney to c.all these persons as witnesses, but in our opinion the court was right in refusing this request. It appears from the evidence that there was a large number of persons constituting the party at Zurich’s house, who came away together, all of whom participated in the snowballing which seemed to be as to all parties of a friendly nature, except the defendant, who appears to have become angry for some reason, and to have left the pаrty for a few minutes, and on returning used the knife as above stated. The law of this state does not require the production of all the eyewitnesses to the transaction on the part of the state, and, in the absence of such a re•quirement, we are not inclined to adopt such a rule of practice. The rule contended for ,by the defendant was established in England at an early date, when defendants in criminal cases were not allowed the aid of counsel in making their defense, and is not ap
2. The defendаnt sought, on cross-examination of the witnesses on the part of the state, to show that there was a heated discussion between the parties present at Zurich’s, during the time they were there, in regard to the Greek and Catholic religions, and that some angry words passed between some of the parties and Kape-lino; but, so far as the questions in the case indicate, there were no words between the injured party and Kapelino. The nature of the questions may be understood from the following questions propounded to witnesses for the state: “You were discussing the question of the Greek Catholic and the Roman Catholic religion,'weren’t
The defendant also sought to show by witnesses bn the part ■of the defense these conversations occurring at the house of Zurich prior tо the cutting. This evidence was objected to and excluded by the court,' and we’ think properly excluded, for the reasons before stated. The discussion that occurred at tlie house of Zurich was clearly incompetent, irrelevant, and immaterial, and' did not tend to constitute any part of the res geste. No definite rule can be laid down as to the admission or rejection of evidence as a part of the res gestae, and each case must practically be decided upon the facts and circumstances connected therewith, and hence much discretion- must necessarily be vested in the trial court in the admission or rejection of such evidеnce. People v. Wong Ark,
3. The instruction requested by the defendant, and refused by the court, is as follows: “And if you find from the evidence in this cáse that the defendant, John Kapelino, was intoxicated at the time of the alleged commission of the crime with which he stands charged, the jury may take into consideration that fact, in detеrmining the purpose, motive, or intent with which he committed the act, if you find from the evidence in the case, and beyond a reasonable doubt, that the defendant did cut Gayo Bocich, as charged in the information. And the court further instructs you that in this case, if the jury believe from the evidence that, at the time of the commission of the allegеd assault with intent to kill, the defendant was by reason of intoxication incapable of entertaining an intent to kill, he cannot be convicted of an assault upon Gayo Bo-cich, with intent to kill; but, if you convict at all, it must be of some lesser offense, to which such an intent is not material.” The court subsequently, in its charge to the jury, fully instructed them upon this subjеct, using the following language: “There has been some evidence introduced in this case * * * tending to show that the defendant in this case, John Kapelino, at the time of the alleged assault, was intoxicated or drunk. The statutes of this state * * * provide as follows: ‘No act committed by a person while in a state of voluntary intoxication shall bе deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a
4-, ■ It is fúfther poiitended by th.e appellant .that the court’s re; fusal- to-instruct the j-ury that they might convict the defendant of. assault and battery simply was a.reversible error. This, contention is clearly untenable. The jury, under the evidence, were authorized to find the defendant guilty, of an assault with a- deadly •weapon with intent to murder .,as .charged in the information; _ or of assault with intent to do bodily harm with a sharp and- dang.eroiis. weapon, as found by their verdict,- and, if they-were notsatisfied beyond a- reasonable doubt оf- the guilt of the defendant of .either of -these offenses, he was entitled to an acquittal, for, under the evidence, the jury-would not have been warranted in finding, him guilty of a ‘simple assault. Where as under our statute there are degrees of crime,, and the jur)f are- charged with the duty of finding •the degree, it is proper for the court to charge the jury in rеspect to the acts necessary to constitute the crime in each degree. State v. Hubbard, 20 S. D. 148,
We have not overlooked the other errors assigned, but, in our view, the)- have not sufficient merit to be entitled to a special consideration.
Finding no error in the record, the judgment of the circuit court is affirmed.