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1. Assault and battery — Information charged criminal offense. An information, charging second degree assault by unlawfully pointing a loaded revolver at named person and threatening him therewith, charged a criminal offense. 2. Assault and battery — Pointing of firearm not constituting assault. A person presenting a loaded firearm at another, with purpose to do him an injury or put him in fear, is guilty of unlawful act amounting to assault, but if pointing of weapon is accidental, there is no purpose or intention to injure person pointed at by putting him in fear or otherwise, or pointing is done through mistake or for good cause or reason, act is not unlawful in such sense as to constitute crime. 3. Criminal law — Evidence not admissible under information. In prosecution for second degree assault under statutory subdivision defining such offense as willful and wrongful assault by use of weapon likely to produce grievous bodily harm, evidence that defendant, in pointing loaded revolver at prosecuting witness, was resisting lawful arrest by him as sheriff, in violation of another subdivision, was inadmissible. 4. Witnesses — Testimony of spouse, exception. At common law, one spouse cannot testify for or against the other in criminal prosecution, except as to offense committed by such other spouse against witness person, in absence of contrary constitutional or statutory provision. 5. Witnesses — Test of exception of testimony of spouse. The test in determining whether crime was committed by one spouse against the other, so as to render victim competent to testify against spouse charged therewith, is whether offense amounted to personal violence or physical assault on witness. 6. Criminal law — Witnesses — Testimony of spouse incompetent — Reversible error. Defendants wife was not competent witness against defendant, and admission of her testimony that defendant, in pointing firearm, was resisting lawful arrest by prosecuting witness, constituted prejudicial and reversible error, since defendant was not charged with crime of violence on his wife or abandonment or neglect of her or their children. 7. Arrest — Sheriffs right to arrest. A sheriff, accompanying his deputy to ranch after deputy received telephone call from ranch owners wife, stating that owner was beating and threatening to kill her, and who was handed blank justice court complaint by county attorney, instead of requested warrant for owners arrest, had no legal right to make arrest, unless sheriff believed that such owner had committed a felony on his wife. 8. Assault and battery — Evidence insufficient for conviction. Evidence was insufficient to warrant conviction of second degree assault.

Professional & Technical
July 3
LawApp Publishers
Innodata Book Distribution Services Inc

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