15 S.D. 613 | S.D. | 1902
Upon an information duly filed by the state’s attorney of Kingsbury, county, the plaintiff in error was tried and convicted of the offense of riot — he at the time being disguised and carrying a dangerous weapon — and was sentenced to imprisonment in the state penitentiary. for a period of two years. A motion for a new trial having been denied, the plaintiff in. error brings the case to this court upon writ of error, for review. Before finally pleading to the information, the plaintiff in error moved the court to strike from the' information the following words: Carrying at the time of said riot a dangerous weapon.” Also the following Words in said information: “Said Fred Page, then and there at the time of such assembling and at the time of such assault carrying a dangerous weapon, to-wit., a strong and heavy whip, some six feet in length,” — on the following grounds: (i) That a whip is not a dangerous weapon, such as is contemplated by the statute; (2) a weapon such as is contemplated by the statute is a weapon which is per se an instrument used for the purpose of offense or defense, and it does not mean an instrument which may become such under certain circumstances. This motion was denied, and exception duly taken. At the conclusion the trial court charged the jury that, in order to convict, it must find that the defendant carried a dangerous weapon, or that he was masked. This portion of the charge is assigned as error, for the reason that the statute does not use the term “masked,” but “disguised,” in defining -riot. The court further instructed the jury: “Under the laws of this state, and also a majority of the states of the’Union, it is optional with the defendant whether he go on the stand and testify or not. The law further provides that the fact that he does not go on the stand' to testify shall create no presumption against him.” This portion of the charge is also assigned as error. It is further assigned as error that the ver
The first question presented is, did the court err in refusing to strike out the parts of the information specified in the motion ? “Riot” is thus defined by the statute: “Any use of force or violence or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.” Section 6677, Comp. Laws. By section 6678 it is provided: “Every person guilty of participating in any riot is punishable as follows: * * * (3) If such person carried at the time of such riot any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in a state prison not exceeding ten years and not less than two.” The information in this case was drawn under this subdivision of the section. It will be noticed that the language of the. statute is that, if such person carried at the time of such riot “any species of firearms or other deadly or dangerous weapon,” he is punishable, etc. It is contended on the part of the plaintiff in error that, in order to bring the case within the provisions of this subdivision, the instrument carried must be what is known as either a deadly or dangerous weapon per se, for offense or defense of the person, and that a strong and heavy whip, six feet or more in length is neither a deadly nor dangerous weapon per se, within the meaning of the statute. We are inclined to agree with the plaintiff in error in his contention. As will be noticed, the statute is a highly penal one. When the party is found guilty of carrying a deadly or dangerous weapon, or is disguised, at the time of the commission of
We are clearly of the opinion in this case that the court should have granted the motion, and stricken from the information the parts thereof before indicated; and for the error of the court in denying the motion a new trial must be granted. It is true the plaintiff in error might have been convicted under the information in this case even if the parts of the information indicated had been stricken out,
These views render it unnecessary to consider the other questions presented by the other assignments of error. The judgment of the circuit court is reversed, and a new trial ordered.