State v. Akin

• Decision Date: 02 April 1895
• Parties: STATE v. AKIN.
• Court: Iowa Supreme Court

94 Iowa 50

62 N.W. 667

STATE

v.AKIN.

Supreme Court of Iowa.

April 2, 1895.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

Defendant was indicted and tried for the crime of “an assault with intent to maim and disfigure.” He was found “guilty of assault with intent to inflict great bodily injury,” and adjudged to pay a fine of $200 and costs, and in default of the payment of said fine to stand committed for the term of 60 days. Defendant appeals. Affirmed.C. E. Albrook, for appellant.

Milton Remley, Atty. Gen., and Thomas A. Cheshire, for the State.

GIVEN, C. J.

1. Appellant moves to strike appellee's “second additional abstract”; also his brief and argument, because not served and filed in time. Said second additional abstract shows as a part of the record not appearing in appellant's abstract the following: “That after the evidence was closed the defendant's attorney in open court said: ‘There is one thing we omitted, if the court please. I suppose it will be conceded by you [addressing attorney for the state] that defendant was arrested by you the next morning after the assault and battery on Mr. Scales, and fined $10.00, Mr. Hayes being a justice of the peace in this town and county.’ The state conceded that this was so.” Appellant filed his “amendment to abstract,” in which he denies that the words, “addressing attorney for the state,” and the words, “The state conceded that this was so,” appear in the record, and moves to strike the same. The court did not submit the question of appellant's guilt of an assault or assault and battery, but instructed the jury that the fact mentioned in their hearing that the defendant had been arrested and fined for an assault and battery should not be considered by them; that such conviction released the defendant from further prosecution for assault or assault and battery, but was no defense against the charge concerning which they were instructed. Appellee's first abstract shows that prior to the commencement of the trial the defendant in open court filed a special plea to said indictment, alleging that the defendant had been arrested, tried, and fined for assault and battery for the same act upon which the charge in the indictment is based. It is evident that the case was tried upon the theory, and without question, that appellant had been arrested and fined for assault and battery for the same act charged in the indictment, and that he could not be convicted thereon in this prosecution. The words appearing in appellee's second additional abstract that are denied by appellant will be stricken out, but, in view of the entire record, the motion to strike appellee's abstract and argument is overruled.

2. The court, after instructing as to the crime charged, instructed the jury that the offense charged includes “a lower or lesser degree of crime called ‘assault with intent to inflict great bodily injury,’ ” and proceeded to inform the jury as to that crime. Appellant contends that the intent to inflict a great bodily injury is an entirely different intent from that charged, and is not included in the charge; therefore the instruction is erroneous. Section 3857 of the Code, under which this indictment is found, is as follows: “If any person, with intent to maim or disfigure, cut or maim the tongue; cut out or destroy an eye; cut, slit, or tear off an ear; cut, bite, slit, or mutilate the nose or lip; cut off or disable a limb or any member of another person, he shall be punished by imprisonment in the penitentiary not more than five years, and fine not exceeding one thousand dollars nor less than one hundred dollars.” It will be observed that to constitute the crime of maiming or disfiguring as here defined the accused must have done to another person some one of the acts specified, with intent to maim or disfigure. The charge is that the defendant committed an assault and battery upon the person of J. H. Scales, and did “break and mutilate the nose, mouth, and lips of the said J. H. Scales, and the said Paul C. Akin did then and there make the said assault in and upon the person of the said J. H. Scales with the intent him, the said J. H. Scales, willfully, wickedly, unlawfully, and feloniously to maim and disfigure.” This is not a charge of an assault with intent to maim, as defined in section 3874, but a charge of actually maiming and disfiguring, as defined in said section 3857. Our Code contains the following provisions:

“Sec. 4465. Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.

Sec. 4466. In all other cases the defendant may be found...