                                    No. 13816
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1977


THE STATE OF MONTANA,
                            Plaintiff and Respondent,
         -vs-
TERRY H. DESHNER,
                            Defendant and Appellant.


Appeal from:        District Court of the Eighth Judicial District,
                    Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
    For Appellant:
         Howard F. Strause argued, Great Falls, Montana
    For Respondent :
         Honorable Mike Greely, Attorney General, Helena,
          Montana
         Rick Anderson, Assistant Attorney General, argued,
          Helena, Montana
         J. Fred Bourdeau, County Attorney, Great Falls,
          Montana

                                          Submitted:     December 6, 1977
                                            Decided :
                ,
                .   .--*-
                                                        D E C 2 5 1974
Filed:   9EC2       #   -
Mr. Justice Frank I. Baswell delivered the Opinion of the
Court:

     Defendant was charged with the crime of aggravated
assault.    Defendant was found guilty after trial by jury.
Following denial of defendant's motion for a new trial, he
appeals to this Court.
     On July 21, 1976, at approximately 9:30 p.m. Dan
VanDenBos and two companions were traveling in VanDenBos'
car along First Avenue North in Great Falls, Montana.     Near
the intersection of Ninth Street and First Avenue North a
white 1964 Pontiac with five occupants pulled out in front
of the VanDenBos car nearly causing an accident.     The two
cars then continued along First Avenue North side by side
with the occupants of both cars exchanging obscenities.
Subsequently, one of the occupants of the white Pontiac
fired two shots with a slingshot at the VanDenBos car.    The
second shot struck VanDenBos in the left side of the face.
     VanDenBos then stopped his car, examined himself to
determine if he was bleeding, and proceeded to a hospital
emergency room.   He was examined by the emergency room
physician and spoke to Officer David J. Brinka about the
incident.   A description of the white Pontiac and its
occupants was given to the officer.
     Pursuant to this complaint, a car of the same
description was stopped later the same evening.    Among the
occupants of the car was defendant, Terry Deshner.    A
followup investigation by Officer David Warrington resulted
in the arrest of Deshner.    Subsequent to his arrest,
defendant was given his Miranda warning, signed a waiver,
and stated that it was he who had shot at the VanDenBos
automobile with a slingshot.   He stated, however, that he
was acting in self-defense and was not sure that he had
actually struck VanDenBos.   This incriminating statement
was testified to by Officer Warrington at the trial.
     The state's case-in-chief consisted of the testimony
of VanDenBos, Officers Brinka and Warrington, and Dr. Thomas
M. Keenan, a physician who examined the victim the morning
after the incident.   Defendant chose not to present
evidence.
     VanDenBos testified that he was driving his car at the
time of the incident and was struck on the jaw by some kind
of projectile.   He testified that he was not aware of
exactly what had hit him and was not sure the projectile had
been propelled by a slingshot. VanDenBos also testified
that he did not know who flung the projectile at him.
     No other witnesses were called by the state to show
that VanDenBos had been struck by a projectile fired from a
slingshot or that defendant had fired a projectile at the
victim.   It should be noted that two other individuals were
in the VanDenBos car at the time of the incident.   They were
not called as witnesses.
     Two issues are presented for our consideration on appeal:
     1. Whether sufficient evidence was produced by the state
to sustain a verdict of guilty of the charge of aggravated
assault as defined by section 94-5-2Q2(1) (b), R.C.M. 1947.
     2. Whether the District Court erred in refusing to give
an instruction to the jury stating that a confession must be
corroborated by other evidence before a guilty verdict can
be returned.
    On the first issue, defendant contends that there is no
proof that the slingshot which was used was capable of
producing death or serious bodily injury, an element of the
crime of aggravated assault.   He points out that neither the
slingshot nor the projectile were ever introduced in
evidence or described to the jury.
      Section 94-5-202(1) (b) defines the elements of the
crime :
      "A person commits the offense of aggravated assault
      if he purposely or knowingly causes:


      "(b)bodily injury to another with a weapon."
      Section 94-2-101(65), R.C.M.      1947, defines a "Weapon"
as:
      " * * * any instrument, article or substance which,
      regardless of its primary function, is readily
      capable of being used to produce death or serious
                   .
      bodily injury "
Serious bodily injury is defined as bodily injury which
creates a substantial risk of death or which causes serious
permanent disfigurement, or protracted loss or impairment
of the function or process of any bodily member or organ.
Section 94-2-101 (53), R.C.M.   1947.
      The evidence presented at trial concerning proof of
the use of a slingshot in the assault on VanDenBos is as
follows.   VanDenBos testified on direct examination that
he was struck by a projectile propelled by a slingshot.
However, he later partially recanted and stated that he was
not sure it was a slingshot that had propelled the
projectile that struck him.     Officer Warrington testified
as to a confession made by defendant to him wherein
defendant admitted firing two shots with a slingshot at
the VanDenBos automobile.
      The cumulative effect of the testimony offered at trial,
taken in the light most favorable to the state does not
prove that the assault was committed with a weapon "capable
of being used to produce death or serious bodily injury".
Even if we assume that the use of a slingshot was adequately
proven, the record is barren of any testimony that the
slingshot-projectile combination was in fact a weapon
capable of producing death or bodily injury.       No evidence
  was presented concerning the size, weight or shape of the
  projectile which struck the victim nor the velocity at which
  the slingshot was capable of propelling such projectile.
  The evidence indicated that VanDenBos received a bruise on
  the jaw requiring no hospitalization and that no bones were
  broken.    Such proof falls far short of establishing an
  assault with a weapon capable of being used to produce death
  or serious bodily injury as required by statute.
       Since the evidence was insufficient to support the
  conviction, discussion of the second issue is unnecessary.
  The judgment of the District Court is reversed and the charge
  of aggravated assault dismissed.



                                           Justice

We concur:            -
