131 Minn. 427 | Minn. | 1915
Lead Opinion
Defendant was indicted for an assault in the second degree and was convicted of an assault in the third degree. He made a motion in.arrest of judgment and also for a new trial. These motions were denied; sentence, was imposed, and he appealed.
The above statement of facts is given to show the bearing of that portion of the charge which defendant urges as error. In this portion of the charge, the jury were told in substance that, if they found beyond a reasonable doubt that defendant, knowing the position of the boys, “recklessly or carelessly discharged his pistol against the ground,” and further found “that such action on the part of the defendant was of such a reckless or careless nature as to show indifference as to whether another person was thereby injured,” and further found that such action resulted in the ball so discharged striking Mogren and inflicting grievous bodily harm upon him, they should find defendant guilty of assault in the second degree. The jury found him not guilty of an assault in the second degree,.but guilty of an assault in the third degree. Therefore assuming, without conceding, that this instruction was error as applied to the second degree, it is not cause for reversal unless also error in respect to the third degree. The statute defines what constitutes an assault in both the first and second degrees, and then provides: “Every person who shall commit an assault, or an assault and battery,
In discharging his revolver at the time and place and under the circumstances stated, defendant committed an unlawful act. G. S. 1913, § 8803. It is the general rule that a person who intentionally commits an unlawful act, and in doing so inflicts an unforeseen injury, is criminally liable for such injury./Discharging a firearm without justification to frighten another, although intending not to hit him, is an assault and battery if the other be hit. State v. Triplett, 52 Kan. 678, 35 Pac. 815; Commonwealth v. Mann, 116 Mass. 58, Commonwealth v. Hawkins, 157 Mass. 551, 32 N. E. 862; Malone v. State, 77 Miss. 812, 36 South. 968; Smith v. Com. 100 Pa. St. 324; State v. Baker, 30 R. I. 375, 38 Atl. 653, 78 Am. St. 863; Tyner v. United States, 3 Okla. Cr. 689, 103 Pac. 1057; State v. Surry, 23 Wash. 655, 63 Pac. 557.
In view of the admitted fact that defendant intentionally discharged his revolver for the purpose of frightening the boys, the instruction complained of was proper in defining what would constitute an assault in the third degree. As defendant was found guilty in the third degree, and was found not guilty in the second degree, no prejudice resulted to him even if the court erred in applying the instruction to the second degree. Upon the conceded facts, defendant was clearly guilty of an assault in the third degree.
Judgment affirmed.
[G. S. 1913, § 8633.]
Dissenting Opinion
(dissenting).
Defendant was a police officer. Late at night on the day charged in the indictment, he discharged his revolver against the ground, for the purpose of frightening some young men or boys who had been about the streets engaged in Hallowe’en pranks, thus to induce them to go to their homes. The bullet from the revolver struck an object on the ground and was deflected and one of the young men received an injury therefrom. The officer was not actuated by malice or evil intent. De
For these reasons I respectfully dissent.