State v. Andrews

• Decision Date: 16 December 1891
• Parties: STATE v. ANDREWS.
• Court: Iowa Supreme Court

84 Iowa 88

50 N.W. 549

STATE

v.ANDREWS.

Supreme Court of Iowa.

Dec. 16, 1891.

Appeal from district court, Sioux county; SCOTT M. LADD, Judge.

Defendant was charged by indictment with the crime of murder, and on trial was convicted of the crime of manslaughter. He was adjudged to be imprisoned in the penitentiary at Ft. Madison for the term of two years and six months, and from that judgment he appeals. Reversed.Argo & McDuffie, for appellant.

John Y. Stone, Atty. Gen., and Thomas A. Cheshire, for the State.

ROBINSON, J.

1. The indictment contains two counts, the first of which is as follows: “The grand jury of the county of Sioux and state of Iowa, in the name and by the authority of the state of Iowa, accuse James Andrews of the crime of murder in the first degree, committed as follows: The said James Andrews, at the county of Sioux, and state of Iowa, on the 22d day of August, A. D. 1888, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, in and upon one Charles O'Connor, then and there being, did make an assault, and that he, the said James Andrews, then and there, with a certain deadly weapon, being a revolver, then and there charged and loaded with gunpowder and one leaden bullet, which said revolver he, the said James Andrews, in his hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did discharge and shoot off to, against, and upon the said Charles O'Connor; and that the said James Andrews, with the leaden bullet aforesaid, out of the revolver aforesaid, then and there, by the force of the gunpowder aforesaid, by the said James Andrews discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did strike, penetrate, and wound him, the said Charles O'Connor, in and upon the left side of the belly of him, the said Charles O'Connor, then and there with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the revolver aforesaid, by the said James Andrews, in and upon the left side of the belly of him, the said Charles O'Connor, one mortal wound, of the depth of twelve inches, and of the breadth of half an inch, of which said mortal wound the said Charles O'Connor from the 22d day of August, A. D. 1888, to the 23d day of August, A. D. 1888, aforesaid, at the town of Hawarden, in the county and state aforesaid, did suffer and languish, and languishing did live; on which said 23d day of August, A. D. 1888, aforesaid, in the year aforesaid, in the county and state aforesaid, the said Charles O'Connor of the said mortal wound died; and so the jurors aforesaid upon their oaths do say that he, the said James Andrews, him, the said Charles O'Connor, in the manner and form aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Iowa.” The second count charges the same offense, with an unimportant difference in the language employed to describe the weapon used and the wound inflicted; but, so far as its legal effect is involved in this appeal, it is subject to the same rules of construction as the first count, and need not be set out at length.

The charge of the court submitted to the jury the question of the guilt of defendant of the crime of murder in the first degree, and of that appellant complains, and insists that the indictment sufficiently charges no higher offense than that of murder in the second degree. An examination of the indictment shows that it accuses defendant of having inflicted the wound which caused the death of O'Connor, “feloniously, deliberately, premeditatedly, and with malice aforethought;” but, except in the concluding part, it does not charge that...