(dissenting).
I dissent.
The instruction requested by the defendant should have been given. The evidence shows that the defendant had been kneeling near the tire of the Watts’ vehicle which he had just slashed. When Watts came out of the house onto the porch, the defendant stood, advanced toward Watts, flicking, flipping or shaking the knife in his left hand. The defendant came no closer than twenty feet of Watts who was flanked by his two brothers who were armed with shotguns.
State v. Mier, 74 S.D. 515, 55 N.W.2d 74, and State v. Wiley, 52 S.D. 110, 216 N.W. 866, require that the victim of an assault must be put in fear of immediate bodily injury under circumstances which would produce fear in the mind of an ordinary man. The defendant’s instruction sufficiently apprised the trial court of the proper rule of law. Since the instructions given by the trial court in no way advised the jury of that requirement, an instruction incorporating that principle should have been given. See Schmidt v. Wildcat Cave, Inc., 1977, S.D., 261 N.W.2d 114. Since a factual question of whether Watts was in fear of immediate bodily injury was presented, failure to give the instruction under the evidence of this case was reversible error.