State v. Herron
Montana Supreme Court
Appeal from Third Judicial District, Deer Lodge County. Information for attempt to commit an assault with a deadly weapon. Defendant’s motion for an instruction to acquit was granted by Durfee, J. Statement of the facts prepared by the judge delivering the opinion. The information in this ease was for an attempt to commit an assault with a deadly weapon, with the intent to commit a violent injury upon the person of George W. Nelson.
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Appeal from Third Judicial District, Deer Lodge County. Information for attempt to commit an assault with a deadly weapon. Defendant’s motion for an instruction to acquit was granted by Durfee, J. Statement of the facts prepared by the judge delivering the opinion. The information in this ease was for an attempt to commit an assault with a deadly weapon, with the intent to commit a violent injury upon the person of George W. Nelson. On the trial of the case the State introduced its testimony, the gist of which, as far as this appeal is concerned, is as follows: The defendant met the…
1Opinion of the Court
He "Witt, J.
It is not questioned but a loaded rifle is a deadly weapon. In this case a rifle was used. It was used with threats. The defendant said that he would blow Nelson’s head off. He thus threatened to do that which he could do only if the gun were loaded. The gun could be used, as threatened to be used, only when loaded. Under these circumstances, on an information for an attempt, must the State prove that the gun was loaded, or is it a matter of defense to show the fact (if it be a fact) that there was no load in the gun ? This was the proposition fairly before the District Court, and…
2Cases cited11 opinions
- Dœring v. StateIndiana Supreme Court · 1874
- State v. ShepardSupreme Court of Iowa · 1859
- State v. BenedictSupreme Court of Vermont · 1839
- Crow v. StateTexas Supreme Court · 1874
- State v. NealSupreme Judicial Court of Maine · 1854
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3Cited by26 opinions
- Kirkpatrick v. James M.California Supreme Court · 1973
- People v. DoudMichigan Supreme Court · 1923
- Commonwealth v. HensonMassachusetts Supreme Judicial Court · 1970
- State v. WilsonOregon Supreme Court · 1959
- In re R.L.S.Montana Supreme Court · 1999
21 more not listed; retrieve them via the Exa API.