State v. Brinkman

Dibell, J.

The defendants Brinkman, Graupman and Hanson were convicted of assault in the second degree and appeal from the order denying their motion for a new trial.

1. Under an indictment for one degree of a crime a defendant may be *19 convicted of a lesser degree .of the same crime if the facts warrant. G. S. 1913, §§ 8476, 9213. And, if the evidence is such that a jury may convict of the lesser degree, the accused is entitled to an appropriate instruc- * tion submitting the lesser degree. ■ State v. Smith, 56 Minn. 78 , 57 N. W. 325 .

2. None of the three defendants personally committed the assault. It Avas committed by one Gaularpp. See State v. Gaularpp, 144 Minn. 86 , 174 N. W. 445 . No weapon was used. .The allegation of the indictment, making the assault charged assault in the second degree, was that grievous bodily harm was inflicted: The evidence is ample to justify a finding that the injury was not greater than such as often attends a third degree assault and that grievous bodily harm was not inflicted. The degree was for the jury. The defendants requested an appropriate instruction that third degree assault be -submitted and it was error to refuse it.

'The error results in a new trial, and we assume, without deciding, that' the evidence was such as to make the three defendants liable equally with Gaularpp for the assault which he personally committed.

Order reversed.