State v. Crutcher
| Decision Date | 09 December 1941 |
| Docket Number | 45607. |
| Citation | 1 N.W.2d 195,231 Iowa 418 |
| Parties | STATE v. CRUTCHER. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
E. S. Thayer, of Des Moines, for appellant.
John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Francis J. Kuble, Co. Atty., and Walter W. Selvy, Asst. Co. Atty., both of Des Moines, for appellee.
On September 30, 1940, defendant shot Edward Patten, injuring his right arm so that amputation was necessary. Defendant admitted the shooting but claims he acted in self-defense and that in any event he was not guilty of a higher offense than assault with intent to commit manslaughter. Defendant lived in the home of a Mrs. Williams and paid some of the house-hold expenses including the bill for gas used in the stove. Patten was a neighbor boy, 18 years old, who had come to the Williams home to see the oldest daughter. Defendant and the daughter engaged in an argument in which defendant accused the girl of extravagance in the use of gas. A scuffle ensued between Patten and defendant. Defendant then ordered Patten to leave the house. Defendant claims that as Patten left, he threatened: "I will get you, I am going to kill you." Defendant then went to his room and got his shotgun with three loaded shells. Armed with this gun defendant went to the corner of the house where, as he claims, Patten was advancing with a large club raised in a threatening manner. Thereupon, defendant fired the shot which wounded Patten. Patten and other state witnesses denied that defendant was threatened in any manner, by word or act. Defendant was indicted for assault with intent to commit murder, tried and convicted. Upon this appeal, the sole grounds urged for a reversal pertain to the instructions given the jury. We have not had the benefit of an argument by the state.
I. Appellant's first complaint is that the court erred in not submitting to the jury the included offense of simple assault. The included offenses which were submitted are assault with intent to commit manslaughter, assault with intent to do great bodily injury, and assault and battery. We think, under the evidence, appellant was guilty of at least the included offense of assault and battery if he was guilty of assault. Appellant testified that he fired but one shot. It struck the prosecuting witness. Appellant is therefore in no position to claim that he is guilty of less than assault and battery if he is guilty of any offense. A failure to instruct as to an included offense is not error where the evidence shows the defendant guilty of the higher offense or not guilty of any offense. State v. Grba, 196 Iowa 241, 250, 194 N.W. 250; State v. Marshall, 206 Iowa 373, 377, 220 N.W. 106. Furthermore, since the jury found appellant guilty of the crime charged in the indictment, and since three lower included offenses were submitted in the court's instructions, appellant probably suffered no prejudice by the court's failure to submit the offense of simple assault. State v. Smith, 215 Iowa 374, 380, 245 N.W. 309.
II. Instruction 8, dealing with the law of self-defense, told the jury that where a person is assaulted by another in such manner as to induce the belief that he is in danger of losing his life or suffering great bodily harm, he may use such means to defend himself as reasonably appear necessary to him under the circumstances. The exception to the instruction is that an actual assault is not necessary before one is justified in acting in self-defense; that a reasonable apprehension that there is about to be an assault is sufficient. Instruction 9, to which appellant did not except, applies the law of self-defense stated in Instruction 8 to this particular case, and told the jury that in order for defendant to have acted in self-defense he must first have been assaulted by Patten.
No hard and fast rule can be laid down as to just what conduct on the part of deceased, in homicide cases, is sufficient to induce a reasonable belief in the accused that he is about to lose his life or suffer great bodily harm, in order to invoke the doctrine of self-defense. Each case must be considered in the light of the proven facts and circumstances. A mere threat is not ordinarily sufficient to justify a defendant in using a deadly weapon in self-defense. 30 C.J. p. 66, sec. 237; 26 Am.Jur. p. 256, sec. 143. However, an actual assault by the victim is not always necessary in order to justify a defendant in using a deadly weapon in self-defense, if the circumstances are such as to cause a reasonable apprehension that an assault is about to be committed. 30 C.J. p. 64, sec. 235; 26 Am.Jur. p. 255, sec. 142; State v. Brooks, 192 Iowa 1107, 1117, 186 N.W. 46.
We think, therefore, that the exception to Instruction 8 is well taken. However, in our opinion, the error is not sufficient to warrant a reversal and must be deemed under the record to be without prejudice. Appellant testified that when he came to the corner of the house, he saw the Patten boy about 18 feet away coming toward him, holding up a club 15 to 18 inches long; that appellant told Patten to stop but he kept right on coming. The shot was then fired. Myrtle Scroggins testified she saw Patten coming toward the house with a club in his hand. She heard appellant say "Stop" and then heard the gun go off. This is all the testimony regarding any assault, either actual or contemplated, by Patten. Patten and other prosecution witnesses all denied any threatening conduct on Patten's part and claimed the shot was fired when Patten was running away from the Williams home.
The instructions defined an assault as an unlawful attempt by violence, coupled with the present ability, to do injury to the person of another, irrespective of whether the person is touched or not, "as by lifting the fist or a cane in a threatening manner." Under this definition Patten clearly committed an assault upon appellant if appellant's testimony is to be believed and the jury could not have found otherwise. Appellant argues in support of his exception to Instruction 8 that the jury might not have believed that Patten's act "in advancing upon appellant with an upraised club amounted to an assault, but might have found that it raised a reasonable apprehension that the prosecuting witness was about to make an assault on appellant." We think, however, under the evidence and the court's definition of assault there was no room for a jury finding that Patten was "about to make an assault on appellant." If appellant's evidence was accepted, Patten made an assault. If the state's witnesses were believed, Patten was not even about to assault appellant.
III. Instruction 12 stated that where one person assaults another with a deadly weapon and...
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...Unless there be an explanation to the contrary showing a legal excuse for the assault and killing'--italics added); State v. Crutcher, 231 Iowa 418, 423, 1 N.W.2d 195, 198 ('Instruction 12 stated that where one person assaults another with a deadly weapon and death ensues, the law presumes ......
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