State v. Clark

• Decision Date: 05 June 1890
• Citation: 80 Iowa 517,45 N.W. 910
• Parties: STATE v. CLARK.
• Court: Iowa Supreme Court

80 Iowa 517

45 N.W. 910

STATE

v.CLARK.

Supreme Court of Iowa.

June 5, 1890.

Appeal from district court, Bremer county; G. W. RUDDICK, Judge.

The grand jury of Bremer county returned an indictment against the defendant, the charging on the part of which is as follows: “The said Edward Clark, on the 3d day of December, in the year of our Lord one thousand eight hundred and eight-seven, in the county of Bremer and state of Iowa, did, with a deadly weapon, to-wit, a certain billiard cue, the particular description of which is to this grand jury unknown, which the said Edward Clark then and there held in his hands, make an assault upon one A. B. Haskins, with intent then and there, wickedly, unlawfully, maliciously, and feloniously to strike and bruise, and did inflict upon the person of said A. B. Haskins a great bodily injury, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state of Iowa.” Defendant demurred to the indictment, and, the demurrer being overruled, he pleaded not guilty, and the cause was tried to a jury. The jury returned the verdict of guilty of assault with intent to inflict great bodily injury, whereupon the defendant filed his motion for new trial and in arrest of judgment, which being overruled, judgment was entered upon the verdict; to all of which defendant excepted, and from which he appeals, assigning as errors the overruling of his demurrer, of his motion in arrest of judgment, and for new trial, and in pronouncing judgment on the verdict.

ROTHROCK, C. J., and ROBINSON, J., dissenting.

Wm. H. McClure, for appellant.

E. A. Dawson, Co. Atty., and John Y. Stone, Atty. Gen., for appellee.

GIVEN, J.

1. The errors assigned involved the single inquiry whether the indictment charges the assault to have been made with intent to inflict great bodily injury. The indictment must be direct and certain as regards the offense charged. Code, § 4298, (McClain's Ann. Code, § 5683.) An indictment cannot be aided by intendment, or an omission supplied by construction. The acts necessary to constitute the offense must be, in the manner indicated, set out and averred. State v. Potter, 28 Iowa, 554. The intent charged is to “strike and bruise,” an intent which may exist in a case of simple assault or assault and battery. No intent to inflict great bodily injury is charged, except as it may be inferred from the allegation that he did inflict great bodily injury, but the intention cannot be determined by such inference. Every charge in this indictment may be true, and yet the defendant not be guilty of an assault with intent to inflict great bodily injury. He may have committed a battery by striking and bruising, to such an extent as to inflict a great bodily injury, but it does not follow that he is charged with making the assault with intent to inflict such an injury; the injury may have been greater than was intended. We do not think that this indictment charges the offense of an assault with intent to inflict great bodily injury with such a degree of certainty and in such a manner as to enable a person of common understanding to know that such charge is intended, and the court to pronounce judgment upon the conviction according to the law of the case. Our conclusion is that the district court erred in not sustaining defendant's demurrer to the indictment, and the judgment of the district court is therefore reversed.

ROBINSON, J., ( dissenting.)

It is true that the indictment must be direct and certain as regards the offense charged, but it is also true that the “words used in a statute to define a public offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used.” Code, § 4304. It is sufficient to state the...