153 P. 279 | Mont. | 1915
delivered the opinion of the court.
The defendant, charged by information with the crime of assault in the first degree, was found guilty of assault in the second degree, and sentenced to serve a term of one year in the state prison. He has appealed from the judgment and an order denying his motion for a new trial. The charge is that: “The
The events out of which the charge grew are, briefly stated, the following: At about 12:30 o’clock on the morning of April 16, 1914, W. J. Sidley and Mike Nerny, two of the state’s witnesses, hired Frank Knuckey, a chauffeur who drove an automobile for hire in the city of Butte, to take a party consisting of themselves and two young girls, Alice Day and Lena Germo, from the city to O’Neill’s Roadhouse, referred to by the witnesses as the Three-Mile House, situated about three miles away in the valley south of the city, and thence to another place of the same character farther away in the same direction, referred to by the witnesses as the Five-Mile House. As the car passed the corner of Main and Park Streets on the way out of the city, defendant observed it, and, apparently not addressing anyone of the occupants in particular, said: “ I will get you folks yet. ’ ’ The evidence does not disclose directly why he made use of this language importing a threat, or why he should have addressed Knuckey or any one of the party. The circumstances, however, justify the conclusion that the expression was prompted by jealous anger because one of the girls had accepted Nerney as her companion for the time instead of the defendant. Whatever prompted it, it is clear that the defendant was angry at some member of the party. After the party had passed on he endeavored to secure a car to go in pursuit. This he failed to do, because the chauffeur to whom he applied did not think the pursuit would be successful, because his car was unable to attain the speed of that driven by Kunckey. Subsequently, by some means which the evidence does not disclose, he, in company with another man not identified, found his way out to the vicinity of
As the car approached the defendant he had some object in his hand. Some of the members of the party identified it as a revolver. One of the witnesses saw it glisten in the light from the lamps on the car. It was pointed directly at Knuckey. Others of them did not venture an opinion as to what it was. As the car swept by, two distinct explosions were heard, the second following the first at an interval of one or two seconds. Some of the party did not hear these explosions because of the roar of the engine. That they were pistol or gun shots, however,
Upon this evidence the jury found, and were justified in finding: (1) That the defendant was armed with a loaded revolver, and hence had the present ability to inflict physical injury; and (2) that he pointed it at Knuekey under such circumstances as to create in his mind a well-founded apprehension of impending injury. They thus found all the elements of an assault within the rule stated by this court in State v. Barry, 45 Mont. 598, 41 L. R. A. (n. s.) 181, 124 Pac. 775, wherein the authorities on the subject are cited and reviewed at length. It is therefore sufficient for present purposes to say that the court properly submitted to the jury the question whether the defendant, if not guilty of assault in the first degree under subdivision 1 of section 8312 of the Revised Codes, was not guilty of assault in the second degree as defined in subdivision 4 of section 8313, all of the elements of which are included in the crime as defined in the former and as charged in the information. It is true that the evidence is not as satisfactory as it might have been, because the witnesses who observed the incident for some reason minimized, as far as possible, the value of their testimony. Even so, it cannot be said that the jury based their verdict upon mere suspicions and probabilities, instead of substantial evidence, as counsel contend.
In two other instances objection was made by counsel to
The judgment and order are affirmed.
Affirmed.