People v. Montgomery

Criminal Law—Assault With Deadly Weapon—Question of Loaded Gun—Support of Verdict—Conflicting Evidence—Facts and Circumstances.—Though an assault with an unloaded gun is not an assault with a deadly weapon for want of a present ability to do a violent injury, yet the question whether the gun was loaded was one of fact for the jury, and, notwithstanding the testimony of the defendant to the contrary, it is held that the facts and circumstances in proof were such that the jury had the right to disregard his testimony, and find from such facts and circumstances, connected with his course of conduct, acts and threats that the gun was loaded, and to justify their verdict of guilty of the offense charged.

Id.—Pointing of Loaded Gun—Result of Quarrel.—The jury having found that the gun was loaded, under evidence that it was obtained as the result of a previous quarrel, the pointing of it toward the other party to such quarrel with the threat shown, constituted, under the circumstances, an assault with a deadly weapon.

Id.—Distance of Assailant from Intended Victim.—The distance of the assailant from the intended victim is immaterial, provided it be near enough to effect his unlawful intent. A distance of about twenty feet is sufficiently near to justify a conviction for an assault with a deadly weapon.

Id.—Instruction—Self-defense in Previous Quarrel.—An instruction as to self-defense in the previous quarrel before defendant went after the gun is not relevant to the offense of an assault with a deadly weapon which occurred later, for which the defendant was being tried, though the evidence of the previous quarrel was material as bearing upon what followed. But no instruction as to the relative rights and duties of the parties in- connection with the previous quarrel could affect the responsibility of the defendant for his subsequent acts, though it is held that the instruction was not prejudicial to the defendant.

Id.—Refusal of Instruction Elsewhere Given.—Where the jury were fully and correctly instructed on the point contained in a requested instruction, the refusal to give it was without prejudice.