State v. Buchan, 42683.

• Decision Date: 11 December 1934
• Docket Number: No. 42683.,42683.
• Citation: 219 Iowa 106,257 N.W. 586
• Parties: STATE v. BUCHAN.
• Court: Iowa Supreme Court

219 Iowa 106

257 N.W. 586

STATE

v.BUCHAN.

No. 42683.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Marshall County; B. O. Tankersley, Judge.

Defendant was indicted for the crime of robbery. On trial, the jury returned a verdict of guilty of assault with intent to rob, and the defendant appeals.

Reversed.

Roy L. Pell, of Marshalltown, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and J. W. Pattie, Co. Atty., of Marshalltown, for the State.

ALBERT, Justice.

[1] The principal contention of the defendant is that the court failed to give an instruction on assault and battery as an included offense. From the evidence in the case the jury could have found that the defendant put his arm around the neck of the prosecuting witness and choked him until he became dazed or unconscious, and that in the mêlée the prosecuting witness received a cut over the eye from which there was bleeding. This is sufficient evidence to take to the jury the question of assault and battery. The court in its instructions submitted to the jury, as included offenses in the charge of robbery, (1) larceny from the person; (2) larceny; (3) assault with intent to rob; and (4) assault.

We have held in State v. Duffy, 124 Iowa, 705, 100 N. W. 796, that in a charge for robbery an instruction on the included crime of assault and battery should have been given. See further on this same subject, State v. Becker, 159 Iowa, 72, 140 N. W. 201; also, State v. Ockij, 165 Iowa, 237, 145 N. W. 486;State v. Desmond, 109 Iowa, 72, 80 N. W. 214; and for elaboration on the theory of included offense, see State v. Marshall, 206 Iowa, 373, 220 N. W. 106.

[2] The state seeks to meet the contention of the defendant by asserting the doctrine many times announced in this state, to wit, that, if there is no evidence from which the jury could find the defendant guilty of the included offense, such included offense need not be submitted. The first case announcing this doctrine was State v. Kyne, 86 Iowa, 616, 53 N. W. 420, and numerous cases followed the same, and the doctrine was recognized and affirmed in State v. Marshall, 206 Iowa, 373, 220 N. W. 106. The trouble with this contention is that the record in the case before us shows sufficient evidence on which a jury might return a verdict of assault and battery. The state further relies on State v. Smith, 215 Iowa, 374, 245 N. W. 309. In that case the defendant was charged with assault with intent to commit murder, and was convicted...