(concurring).
Gillespie repeatedly kicked the victim in the chest. Victim, unconscious on the ground, was brutally beaten as he lay on the ground and Gillespie kicked the unconscious victim into an almost lifeless state. A tube was inserted in the victim’s chest to drain the fluid surrounding his heart. Through the miracle of modern medicine, a cardiothoracic surgeon saved the victim’s life. Gillespie was either guilty, as charged, of aggravated assault or not guilty of any offense at all. State v. Oien, 302 N.W.2d 807, 809 (S.D.1981).
The special concurrence is bewildering in light of the settled law of this state, the facts of this case and the well written opinion of the Chief Justice. There was a serious bodily injury under the language of SDCL 22-18-1.1(4). There was simply no conflicting evidence to establish simple assault. Simple assault is a lesser included offense of aggravated assault. Judge Hurd would have made a serious mistake had he instructed on simple assault. Authority abounds in this Court to support his decision. State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Poss, 298 N.W.2d 80, 82 (S.D.1980); State v. O’Connor, 265 N.W.2d 709, 716 (S.D.1978).
Lastly, in supporting the majority writing, I note this sentence: “This evidence (punctured lung and heart condition), even when considered in the light most favorable to the defendant, overwhelmingly supports the conclusion that the defendant (Gillespie) caused serious bodily harm to Larson.” (emphasis supplied mine).