Defendant appeals the judgment of conviction of riot while armed. SDCL 22-10-5.We affirm.
This is another chapter of the Custer riot incident which occurred in the City of Custer in February 1973. See State v. Bad Heart Bull (and High Eagle), 1977, 257 N.W.2d 715.
The salient facts, gleaned from some 2,750 pages of pretrial and trial transcripts and volumes of record, reveal that there was a riot in Custer which resulted in extensive property damage and personal injury. The record is equally clear that the defendant participated in a melee when various Indian persons forced their way into the Custer County Courthouse; that he came into possession of a forty-inch riot baton; and that, while using this riot baton, he engaged in combat with various law enforcement officers.
During grand jury deliberations investigating the incident, no one was able to identify the defendant by name. Since photographs, television film and video tape revealed that he was wearing a red bandana around his head, he was indicted under the name of “Red Bandana Doe.” A slide picture of him was attached to the indictment. Defendant was arrested on April 1, 1975. At his initial arraignment, the circuit judge amended the indictment by striking all references to “Red Bandana Doe” and inserting the defendant’s true name of James Robideau.
PRE-ARREST DELAY
Defendant urges that the pre-arrest delay deprived him of his constitutional right to a speedy trial. South Dakota Constitution, Art. VI, § 7; SDCL 23-2-11. He was indicted on August 30,1973, and arrested on April 1,1975. The record is not clear as to the exact time that Red Bandana Doe was identified as the defendant. It is clear, however, that he was identified by June 1974, during the time of an American Indian Movement (AIM) conference on the Fort Yates Indian Reservation near Mobridge, South Dakota.
The Mobridge conference was attended by over 2,000 AIM members and sympathizers. The defendant had identified himself to the state law enforcement authorities as *54the “Chief Security Officer” for the conference.
Early in the conference, the law enforcement officers determined that the arrest of the defendant at that time, considering the atmosphere (post-Wounded Knee and Custer incidents) and the large number of persons in attendance, would be impractical and would have detrimental effects.
Later in the conference, a decision was made to arrest the defendant at a time he was seen entering a laundromat. However, before the officers were able to effect the arrest, defendant was able to evade them.
By the defendant’s own testimony, he was beyond the jurisdictional limits of the State of South Dakota for sixteen of the twenty months he was at large. For at least eight months he whs in other states, and for an additional eight months he was on the Rosebud Indian Reservation. By his own admission he has for the past many years used several aliases. Further, a reasonable interpretation of his testimony would lead us to believe that for several months prior to his arrest he knew that he was being sought for his participation in the Custer incident.
It is this court’s holding that the law enforcement authorities exercised due diligence in attempting to take defendant into custody. Any pre-arrest delay .was caused, at least in part, by the conduct of the defendant. He was not prejudiced by any conduct on the part of the state in that regard.
POST ARREST DELAY
As stated before, the defendant was arrested on April 1, 1975. Following a long series of motions and suppression hearings and the like, the trial was commenced on November 3, 1975. The record seems clear that any delays were occasioned by the defendant or his counsel.
Interestingly, defendant has assigned as error Assignment VI, and we believe without merit, that he was given an insufficient time to prepare for trial. Immediately before the trial he requested a postponement.
We find that no prejudice resulted to the defendant in the delay from arrest to trial. See State v. Starnes, 1972, 86 S.D. 636, 200 N.W.2d 244, citing Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
FAMILY RELATIONSHIP BETWEEN PROSECUTOR AND JUDGE’S WIFE
Defendant, who had disqualified a different circuit judge, asked the trial judge to recuse himself because of the fact that the judge’s wife is a first cousin of one of the prosecutors.
Canon 3(C)(1)(d) of the Code of Judicial Conduct which was adopted by this court on November 26, 1974 (see SDCL 16-2, Appx.) states:
“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
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“(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
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“(ii) is acting as a lawyer in the proceeding * * *
The judge’s wife and the prosecutor having a family relationship in the fourth degree, and the evidence being clear that there were no significant social relations between them, the trial judge properly refused to recuse himself. See State v. Erickson, 1964, 80 S.D. 639, 129 N.W.2d 712; Boyer v. Backus, 1938, 282 Mich. 701, 280 N.W. 756, cert. den., 305 U.S. 644, 59 S.Ct. 147, 83 L.Ed. 416; rehearing denied 305 U.S. 674, 59 S.Ct. 248, 83 L.Ed. 437; Annot., 50 A.L.R.2d 143, and 46 Am.Jur.2d, Judges, §§ 95, 155.
DANGEROUS WEAPON DETERMINATION
During the course of the trial, the judge, in reliance on our ruling in State v. Page, 1902, 15 S.D. 613, 91 N.W. 313, made *55the determination that the forty-inch riot baton used by the defendant was a “dangerous weapon” and instructed the jury accordingly.
Defendant claims that the court should have determined that the riot baton was not a dangerous weapon and accordingly should have granted his motion to dismiss.
In support of his position and as an offer of proof, the defendant called a Mr. Kevin Parsons, who he attempted to qualify as an expert witness on riot batons. Parsons testified extensively as to the design, purpose and use of such instruments. The principal thrust of his testimony was that it is a defensive instrument not designed to be a lethal weapon. He admitted, however, that it is a weapon which can be an offensive weapon capable of breaking bones and inflicting great bodily injury.
Defendant was convicted of a violation of SDCL 22-10-5 which makes it a felony for a person “ * * * participating in any riot,” to carry “at the time of such riot, any species of firearms or other deadly or dangerous weapon * * *(emphasis supplied)
Webster defines “dangerous” as “ * * * 2: able or likely to inflict injury”
Webster defines “weapon” as “1: an instrument of offensive or defensive combat: something to fight with 2: a means of contending against another.” Webster New Collegiate Dictionary (8th ed. 1974, © G. & C. Merriam Co.)
In Page we held, and we now reaffirm, that it is for the court to determine whether the instrument carried is or is not a deadly or dangerous weapon contemplated by the statute. See also State v. Comes, 1936, 64 S.D. 537, 268 N.W. 724.
CONSTITUTIONALITY OF RIOT STATUTES
The material arguments in the assignments in this area were considered and ruled upon in State v. Bad Heart Bull (and High Eagle), supra. We adhere to that ruling.
We have thoroughly considered all of the other assignments of error and find them to be without merit.
Judgment affirmed.
DUNN, C. J., and WOLLMAN and MORGAN, JJ., concur. PORTER, J., concurs specially. MILLER, Circuit Judge, sitting for ZAS-TROW, J., disqualified.