State v. Costello

• Decision Date: 17 February 1925
• Docket Number: No. 36505.,36505.
• Citation: 200 Iowa 313,202 N.W. 212
• Parties: STATE v. COSTELLO.
• Court: Iowa Supreme Court

200 Iowa 313

202 N.W. 212

STATE

v.COSTELLO.

No. 36505.

Supreme Court of Iowa.

Feb. 17, 1925.

Appeal from District Court, Cherokee County; Wm. Hutchinson, Judge.

Indictment for assault with intent to inflict great bodily injury upon one Collins. The defendant pleaded not guilty. A verdict of “guilty as charged in the indictment” was rendered, and judgment was rendered thereon. The defendant has appealed. Affirmed.Wm. Mulvaney and C. D. Meloy, both of Cherokee, for appellant.

Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Lew McDonald, Co. Atty., of Cherokee, for the State.

EVANS, J.

The events upon which this prosecution is based occurred at the town of Marcus, at 9:30 p. m. of May 31, 1923. The evidence for the state was that the defendant and his brother jointly assaulted one Collins and did inflict serious bodily injury upon him. Defendant's real defense before the jury was that he acted in self-defense. He testified that Collins assaulted him and struck him. Collins was an elderly man, 52 years of age, and the defendant was a man 26 years of age, weighing about 185 pounds. The sufficiency of the evidence to sustain the verdict is beyond debate, and we give it no further attention.

[1] The defendant assigns many grounds of reversal. His principal argument is directed to the proposition that the indictment was defective, in that it failed to charge any other offense than simple assault. The charging part of the indictment was as follows:

“The said Pat Costello, on or about the 31st day of May, in the year of our Lord one thousand nine hundred and twenty-three, in the county and state aforesaid, did intentionally and unlawfully assault one James Collins, with intent on the part of the said Pat Costello to then and there inflict upon the person of the said James Collins a great bodily injury, and all of which acts were then and there done in Cherokee county, Iowa, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.”

The complaint is that this indictment failed to charge the facts constituting the offense, so far as such offense included the intent to commit great bodily injury. Accepting the concession of counsel that the indictment sufficiently charged simple assault, the question naturally arises what acts could be specified as constituting an intent. The defendant relies upon State v. Steinke, 185 Iowa, 481, 170 N. W. 801, as authority for his contention. We do not find that authority to be applicable to the contention made by the defendant. In that case the indictment charged an assault, and charged the method of it, and further charged that the defendant therein “ did inflict great bodily injury etc.” It failed, however, to charge an intent to inflict great bodily injury. Such was the defect found in the indictment in that case.

In so far as the offense charged involves the commission of overt acts, it is usually held that such acts must be set forth sufficiently to individuate the particular offense charged. The only overt act involved in the offense charged herein was the assault. This being sufficiently charged as conceded, the intent with which the assault was made involves no necessary overt act, and is quite incapable of further description. In State v. Gulliver, 163 Iowa, 123, 142 N. W. 948, we held an indictment sufficient in form which charged an “assault with intent to rob.” In that case we said:

“* * * In the other case the overt criminal act is the injury or attempted injury of the person of another, and, for reasons already stated, an allegation of the name of the person assaulted is essential to a complete charge; but, the intent having reference only to the mental attitude or purpose of the assailant, it is sufficiently expressed in alleging it in general terms.”

We observe no distinction in principle as between the cited case and that at bar.

[2] It further appears that the defendant raised no question as to the sufficiency of the indictment until after verdict. At that time he filed a motion in arrest of judgment. His contention is that under Code, § 5426 he had a right to raise any question by motion to arrest which he could have raised by demurrer. This contention wholly ignores our later legislation under chapter 227 of the Acts of the 33d G. A., being paragraph 9 of section 5289, Code Supplement 1913. It was there expressly provided that all objections to the indictment relating to matters of substance and form should be deemed waived, if not raised before the jury is sworn on the trial of the case. This statute was construed and applied by us in State v. Gulliver, 163 Iowa, 123, 142 N. W. 948,State v. Boggs, 166 Iowa, 452, 147 N. W. 934,State v. Cooper, 169 Iowa, 572, 151 N. W. 835, and State v. Giudice, 180 Iowa, 690, 163 N. W. 344. In the Cooper Case the...