State v. Shepard

138 N.W. 294, 30 S.D. 219, 1912 S.D. LEXIS 222

• Court: South Dakota Supreme Court
• Decided: October 25, 1912
• Status: Published

Opinion

McCOY, P. J.

Appellant was convicted of the offense of assault with a firearm wit hintent to kill one Perkett, and has appealed, alleging error. From the record it appears that appellant and Perkett'met in the street in front of a hardware store in the town of Faith, Meade county; that appellant said something to Perkett about having made misrepresentations, whereupon Perkett called appellant a liar, and that he was there to- back up his statement, and commenced taking off his coat; that appellant also commenced taking off his coat, but quit removing his coat and pulled a revolver, and struck Perkett twice over the head with the same; that, after being so struck, Perkett -turned and fled into the hardware store, pursued 'by appellant. Bystanders interfered, and prevented appellant from entering the store, and endeavored to take the revolver from him. Perkett closed the door after^ him, but soon afterwards -opened' -the door part way, so that his head was visible, whereupon appellant fired a shot at him with the revolver, the bullet striking near the side of the door near Perkett’s head. At the time the shot was fired Perkett had a post hole auger in his hands. Appellant himself testified: “Per-kett was standing in the door when I fired the shot, and, after 1 fired it, he jumped back. I had no intention of hitting him. I am an expert shot. I had no intention of shooting him or killing him. I had no purpose other than defending myself. I fired the shot to prevent him from coming out. I did not shoot at him, but to scare and 'keep him away from me. I did not shoot very close, could have shot closer. I was careful where I shot. I was 14 feet from him when I shot. The gun was a 44 Colts.”

[1] All assignments of error not mentioned or discussed by appellant in his brief will be deemed abandoned.

[2] On the trial Mr. Vanderley, proprietor of the store in which Perkett took refuge, on cross-examination, was asked by appellant’s counsel the following question: “Mr. Perkett could have gone out the back door had he so desired1?”. To which question respondent’s counsel objected as immaterial, and which objection was sustained, and appellant excepted to such ruling and now urges the same as error. We are of the opinion the court ruled correctly, especially in view of the fact that there is nothing in the record tending to show that Perkett knew, or had an)1, knowledge, that he could have escaped through some back door had he so desired.

[3] Appellant also contends that to questions 180, 182 and 197 defendant’s objections should have been sustained as immaterial. Questions 180, 182 and 197 are not contained in the statement of facts in appellant’s brief. Some reference is made to said questions in the assignments of error. Where a ruling of the trial court in sustaining or overruling an objection to a specific question is sought to be reviewed on appeal, the statement of facts in the brief must show the question objected to and the gounds of objection, the ruling of the court thereon, and that an exception was properly taken, the answer to the question, if any, together with sufficient of the surrounding evidence, if any, showing the connection in which such question was propounded, and also there must be an assignment of error in the record and brief properly raising the alleged error on appeal. The appellate court will not review or consider such ruling upon an assignment of error alone. The statement of fact contained in the brief must show all the facts and procedure upon which the assignment of error is based.

[4] Appellant further assigns as error seven particular instructions given by the court to the jury.- It will serve no useful purpose to set out in full herein such lengthy instructions. The principal ground of objection is that the court iiwaded the pro vince of the jury in stating that certain facts were undisputed, and that there was no self-defense shown 'by the testimony of defendant. This court held in the case of State v. Kinney, 21 S. D. 390, 113 N. W. 77, that an instruction in a criminal case was not erroneous for assuming facts proved by 'undisputed evidence. In the present case the facts assumed by the court in his instruction were undisputed, and the instruction complained of clearly within the rule of the Kinney case.

, Finding no error in the record, the judgment appealed from is affirmed.