United States v. Samuel Harvey

Samuel Harvey, an Indian, shot John Antone, also an Indian, with a .22 caliber rifle on the Papago Indian Reservation in Arizona. Pursuant to 18 U.S.C. § 1153 , as amended, the federal grand jury indicted Harvey for having violated Ariz.Rev.Stats. § 13-249, as amended, “Assault with deadly weapon or force.” At trial the jury found Harvey guilty as charged, and the district court entered a judgment of conviction and imposed sentence. This appeal followed.

The indictment charged that Harvey “did wilfully, unlawfully and feloniously, upon the person of one John Antone, an Indian, commit an assault with force likely to produce serious bodily harm * * * (Emphasis added.) The trial judge twice read the indictment to the jury but refused to give any instructions defining the terms “wilfully” and “feloniously,” although defendant submitted proposed instructions defining these terms. Harvey argues that the trial court erred in refusing to define these terms for the jury.

The intent requirement under the Arizona statute

The statute in question, Ariz.Rev.Stats. § 13-249, reads in relevant part:

Defendant first asserts that although it is the general rule that assault is a so-called…