State v. Cody

Citation62 N.W. 702,94 Iowa 169
PartiesSTATE v. CODY.
Decision Date04 April 1895
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Tama county; J. R. Caldwell, Judge.

Indictment. Verdict of guilty, and the defendant appealed. Affirmed.W. H. Stivers, for appellant.

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

GRANGER, J.

1. The indictment is for an assault with intent to inflict great bodily injury. The verdict is for an assault. The particulars of the offense, as charged, are that the defendant “did make an assault on one Lorenzen, and did hit, bruise, and inflict certain sore and grievous wounds upon the head of the said Lorenzen, with intent,” etc. The court instructed the jury as to the offense charged, and also as to an assault and battery and an assault. The circumstances of the offense charged are, in brief, that the defendant, Lorenzen, one Skinner, and others were in a saloon, where there was a controversy on politics, when, as claimed by defendant, Lorenzen and others made an assault on Skinner, and were about to inflict on him serious injuries, when he took up the chair and struck the blow complained of, in defense of Skinner. The defendant asked an instruction to the effect that if the blow was struck by defendant in necessary defense of Skinner, when he was being beaten by Lorenzen and others, and was in danger of bodily harm, and that defendant had no other purpose in striking the blow than to prevent the injury, and used no more force than was necessary for that purpose, then the defendant was not guilty. The correctness of the instruction asked is not questioned, but we think the same legal thought is presented in a single instruction given by the court, and, together, the instructions given elaborate the thought, and give it quite especial prominence.

2. The evidence conclusively shows that the defendant struck Lorenzen with a chair. Defendant was a witness, and so said. It is urged that, by the verdict for an assault only, there is a practical finding that the blow struck was not unlawful, and hence, as the blow was lawful, the assault leading to the blow could not have been unlawful. Appellant cites a line of cases to support the rule, and speaks of State v. Sigg, 86 Iowa, 746, 53 N. W. 261, as decisive of the question. That was an indictment for rape, and the court did not instruct as to an assault, and the verdict was for an assault with intent to commit rape. The action of the court is sustained, and it is there said: “While there was evidence of an assault, there was none from which an assault could be found without finding a battery also.” Another case much relied on is State v. Mahan, 68 Iowa, 304, 20 N. W. 449, and 27 N. W. 249. The indictment was for murder in the first degree, and the verdict was for manslaughter. Complaint was made that the court did not instruct as to degrees lower than manslaughter, but told the jury that if the defendant was not guilty of murder or manslaughter it must acquit. It was admitted that the defendant inflicted the wound that resulted in the death, and unless the blow was struck in self-defense, beyond any peradventure, there was a criminal homicide. These cases fairly illustrate the line of authorities cited. The holdings are that, in cases where it so conclusively appears that, if there is any crime, it is one of the higher degrees included in that charged in the indictment, it is not error to refuse to charge as to the lower degrees; and although some language, argumentatively used, may seem to express a broader rule, when limited, as it should be, by the subject-matter, it does not. An instruction...

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