Opinion
March 18, 1903.
PRESENT: Stiness, C.J., Tillinghast and Douglas, JJ.
(1) Assault. Criminal Law. Indictments. An assault consists in an offer to do bodily harm, made by a person who is in a position to inflict it; therefore a request to charge that "the jury must find that the bullet went in the direction of R. or there can be no assault with a dangerous weapon" was properly refused.
INDICTMENT, under which defendant was found guilty of simple assault. Heard on petition of defendant for new trial, and petition denied.
Attorney General, for State.
Franklin P. Owen, for defendant.
The only ruling of the court to which the defendant excepted is the refusal to charge that "the jury must find that the bullet went in the direction of the said Herbert W. Root or there can be no assault with a dangerous weapon." It is clear that this refusal was right. "An assault consists in an offer to do bodily harm, made by a person who is in a position to inflict it," as the court below charged. The accuracy or inaccuracy of aim does not determine guilt or innocence of the offence.
The evidence may properly have, left in the minds of the jury a reasonable doubt of the commission of the whole offence charged in the indictment, but it fully justified their verdict that the defendant was guilty of simple assault.
Petition for new trial denied, and case remitted to the Common Pleas Division for sentence.