State v. Cummings

• Decision Date: 17 October 1905
• Citation: 105 N.W. 57,128 Iowa 522
• Parties: STATE OF IOWA, Appellee, v. MIKE CUMMINGS, Appellant
• Court: Iowa Supreme Court

105 N.W. 57

128 Iowa 522

STATE OF IOWA, Appellee, v. MIKE CUMMINGS, Appellant

Supreme Court of Iowa, Des Moines

October 17, 1905

Appeal from Cherokee District Court.--HON. GEORGE W. WAKEFIELD Judge.

FROM a judgment of guilty of assault with intent to inflict a great bodily injury, defendant appeals.

Affirmed.

William Mulvaney, for appellant.

Charles W. Mullan, Attorney General, and Lawrence De Graff, Assistant Attorney General, for the State.

OPINION

DEEMER, J.

I.

The indictment is challenged. So far as material it read as follows: "Said Mike Cummings did unlawfully, willfully maliciously, and with specific intent then and there to inflict great bodily injury, make an assault upon one Lewis Carr, and did then and there, with specific intent to inflict a great bodily injury, strike, beat, bruise, and otherwise maltreat the said Lewis Carr." That this was sufficient, see State v. Carpenter, 23 Iowa 506. The indictment is in the language of the statute, which so far individuates the offense that nothing more need be stated.

II. In the third paragraph of the charge the court instructed: "A simple assault is a threat or menace to do unlawful violence to the person of another, coupled with the means, ability, and intent to immediately inflict the threatened violence, as an act or gesture toward another, with intent and ability to apply unlawful force." This instruction was given to define the offense, and not with reference to defendant's right of self-defense. It is challenged because it does not correctly state the law as to self-defense, and not because it does not correctly define an assault. As an abstract proposition it is not exactly correct, for a mere threat does not constitute an assault. But as defendant admitted the assault, and claimed that he acted in self-defense, there was no prejudice to him.

In the instructions with reference to self-defense the trial court fairly and properly instructed that defendant had the right to act upon appearances and his own reasonable belief, no matter what the real intent of his assailant. The instruction was really more favorable to the defendant than he was entitled to, when considered with reference to his claim of self-defense.

III. The instruction as to assault and battery read in this wise "An assault and battery is an unlawful assault, which results in some injury to the person of the party assaulted. " This is also complained of,...