State v. Dickson

• Decision Date: 17 February 1925
• Docket Number: No. 36686.,36686.
• Citation: 200 Iowa 17,202 N.W. 225
• Parties: STATE v. DICKSON.
• Court: Iowa Supreme Court

200 Iowa 17

202 N.W. 225

STATE

v.DICKSON.

No. 36686.

Supreme Court of Iowa.

Feb. 17, 1925.

Appeal from District Court, Davis County; E. S. Wells, Judge.

On December 5, 1923, the grand jury of Davis county, Iowa, returned an indictment against the defendant, Elmer Garrison Dickson, for the crime of assault with intent to inflict great bodily injury upon the person of one George Mack. A plea of not guilty was entered, and in addition thereto there was filed a special plea of former acquittal. Trial was had to a jury and a verdict returned finding the defendant guilty of the crime as charged in the indictment. A motion for new trial was overruled, and on May 29, 1924, judgment was entered on the verdict, and the defendant was sentenced to imprisonment in the State Penitentiary in conformity to statute. Defendant appeals. Judgment modified and cause affirmed.Jo R. Jaques, of Ottumwa, and Theodore P. Bence, of Bloomfield, for appellant.

Ben J. Gibson, Atty. Gen., and Buell McCash, Co. Atty., and T. A. Goodson, both of Bloomfield, for the State.

DE GRAFF, J.

Two formal pleas were entered by the defendant to the instant indictment, to wit: (1) Not guilty; (2) former acquittal. The latter involves a proposition upon which the defendant predicates reversible error, and is entitled to first consideration, as it is primary and controlling.

The record discloses that on the same day that the defendant, Dickson, committed the assault giving rise to the indictment a verified information based on the same transaction was filed by the county attorney of Davis county in the office of Justice of the Peace Baumgarten in Bloomfield, Iowa, accusing the defendant of assault and battery. A warrant issued, an arrest was made, and bond given. On this date (November 17, 1923), with the consent of the defendant, trial was set for November 22, 1923. No plea to the charge of assault and battery was in fact entered by the defendant, and no trial was ever had. Two days subsequent to his arrest on the information defendant filed his motion for change of venue, supported by affidavit of prejudice which under the statute entitled the defendant to such change. The justice on the same day sustained the motion, but, prior to the completion and transmission of the transcript to the next nearest justice, the county attorney, on November 20, 1923, filed a written dismissal to the action, bottomed primarily on the ground and as recited therein that “a graver offense was committed than mere assault and battery, if the facts disclosed upon investigation are true, and that therefore the matter should be referred to the grand jury of Davis county, Iowa, for proper action in the premises.” This motion was sustained, the information was dismissed, and the defendant ordered discharged and his bond released.

[1] On December 5th the instant indictment was returned. Question stated: Does the dismissal of the information in justice court under this state of facts constitute jeopardy and a bar to the further prosecution of the defendant for the major offense charged in the indictment, to wit, assault with intent to do great bodily injury? The proposition is interesting, and might well serve as the basis for a discussion and citation of authorities. It is a question that has frequently been before the courts, but our prior decisions obviate the necessity for extended comment. Our statute in relation to dismissal of an information is as follows:

“The court, upon its own motion or the application of the county attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a misdemeanor; but it is not a bar if the offense charged be a felony.” Section 14027, Code of 1924.

[2] It is important to differentiate between the statutory bar as defined, supra, and jeopardy within the purview of the constitutional definition, which reads:

“No person shall after acquittal, be tried for the same offense.” Article 1, § 12, Constitution of Iowa.

The statutory prohibition has no relevancy to the instant indictment, which involves a higher and different offense from that charged in the information. In the constitutional sense there was no jeopardy since there was no acquittal. In fact, there was no plea to the charge of assault and battery. To constitute jeopardy the person must be placed on trial on a valid indictment or information before a court of competent jurisdiction upon due arraignment and plea, and a jury must be impaneled and sworn. This is the general rule established by the preponderance of judicial opinion and accepted by the best-considered decisions. 16 C. J. § 363. A mistrial does not constitute an acquittal. State v. Parker, 66 Iowa, 586, 24 N. W. 225. See, also, State v. Pierce, 77 Iowa, 245, 42 N. W. 181. There must be an acquittal in law and in fact.

[3][4] Sufficient to state, however, that the legal principle here involved was determined by this court in the early case of State v. Foster, 33 Iowa, 525, and reaffirmed in the late case of State v. Garcia, 200 N. W. 201. In the Garcia Case it is said:

“Where a court trying a defendant on a lesser charge would have no jurisdiction of a greater offense involving such charge, there can be no jeopardy.”

In the Foster Case it is said:

“A conviction or acquittal, in order to be a bar to another prosecution, must be for the same offense, or for an offense of a higher degree, and necessarily including the offense for which the accused stands indicted.”

As bearing further on the proposition see Scott v. United States, Morris, 142; State v. Gleason, 56 Iowa, 203, 9 N. W. 126;Boswell v. State, 20 Fla. 869.

[5] The conclusion must be that the trial court properly withdrew the special plea of the defendant from the consideration of the jury. It may be further noted in this connection that the court instructed the jury that they should find the defendant either guilty of an assault with intent to inflict a great bodily injury as charged in the indictment or they should find him not guilty. This is correct. In no other manner could the court give effect to the statutory prohibition. It is obvious that, had the jury been permitted to return a verdict of assault or assault and battery, and either had been returned,the court would have been under a legal duty to set aside the verdict. We discover no error in the instructions given.

[6] We now turn to the complaint of appellant that the court was in error in overruling his motion for a directed verdict at the close of the state's evidence, and also at the conclusion of all the testimony. This assigned proposition primarily involves the sufficiency of the evidence to sustain the verdict. In brief, the claim of appellant is that, taking into consideration the character of the assault and the injury inflicted, no graver offense than assault and battery was committed. The crime of assault to do great bodily injury is not susceptible of exact definition. The gist of the offense is the intent with which the act is done, and it is said in State v. Steinke, 185 Iowa, 481, 170 N. W. 801:

“One may have the intent to inflict a great bodily injury, without inflicting any injury at all, or he may intend only assault and battery, but go further than intended, and actually inflict a great bodily injury.”

See, also, State v. Mitchell, 139 Iowa, 455, 116 N. W. 808;State v. Gillett, 56 Iowa, 459, 9 N. W. 362.

[7][8] The evidence disclosed that the defendant went to the office of the county auditor to investigate certain records with respect to the establishment of a road across his farm. During the conversation and the examination of the records George Mack, a state highway engineer, came into the front room of the auditor's office. By reason of Mack's expert knowledge in the premises the county auditor requested him to step into what is called the “engineer's cage.” A dispute arose relative to certain matters involving the presence of a corner stone, the width of the proposed road across defendant's farm, and the setting of certain stakes. At that time what is known as federal aid highway No. 153 was in process of construction. The jury could well find that without apparent provocation, without any warning, and at a time when Mack's hands were in his pockets, the defendant struck Mack a very severe blow. This was followed by a second blow. The force of the assault split Mack's upper lip “open near the nose clear through. The teeth were showing between the gap in the wound.” The attending physician further testified:

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