State v. Fry

• Decision Date: 10 December 1885
• Citation: 25 N.W. 738,67 Iowa 475
• Parties: STATE v. FRY AND ANOTHER.
• Court: Iowa Supreme Court

67 Iowa 475

25 N.W. 738

STATE

v.FRY AND ANOTHER.

Supreme Court of Iowa.

Filed December 10, 1885.

Appeal from Kossuth district court.

The defendants were tried and convicted upon an indictment for an assault with intent to maim; and they appeal.Parsons, Perry & Sherman, for appellants, D. S. Fry and another.

A. J. Baker, Atty. Gen., for the State.

ROTHROCK, J.

1. The principal ground relied upon by the defense for a reversal of the judgment is that the verdict is not supported by the evidence. Robert M. Walker, the prosecuting witness, was, at the time of the alleged injury, about 17 years of age. He testified that on Sunday, the seventeenth day of September, 1882, he was on the open prairie in Kossuth county herding cattle, and that while so employed, the defendants came to him, threw him on the ground, unbuttoned his pants, and cut his scrotum so that one of his testicles passed through the opening made by the cutting. He testified that this occurred at 10 or 11 o'clock in the forenoon; that the defendants wore masks upon their faces; that the only conversation between him and the defendants consisted of Herrick asking him if he was herding, and how many cattle he had in the herd. Walker was acquainted with both of the defendants, and claimed upon the trial that he was able to identify them as the guilty parties. There is no dispute about the injury, and that it was of a very serious character. Walker was the only witness who identified the defendants as the guilty parties. Both of the defendants testified as witnesses on the trial, and denied that they were guilty; and several members of their respective families, as well as themselves, stated that they were not away from their homes on the seventeenth day of September, 1882, except at such time in the day as that they could not have committed the crime. On the other hand, it was shown that the father of Walker had previously had some difficulties with the defendants, and that there was ill feeling by defendants towards him and his family. Walker in his cross-examination stated that he told the grand jury that he was not positive who the men were who assaulted and injured him. It appears in evidence that the defendant Fry lived about one-half mile from the place where Walker claims he was injured, and Herrick lived in the same neighborhood. There was evidence tending to show that the defendants were men of good character, and also evidence to the contrary. There are other circumstances disclosed in evidence, but the foregoing are the leading and prominent facts in the case. We are not prepared to say that the district court should have set aside the verdict as not supported by the evidence. All of the witnesses who testified for the defendants in support of an alibi may have been truthful, and the defendantsmay nevertheless be guilty. Absence from their homes for a very brief period would enable them to commit the crime, and this might well occur without the observation of other members of their families, and although their faces were masked, Walker might well recognize them by the tone of their voices, their size, and gait when walking, and by other means.

2. It is claimed that the evidence of Peter J. Walker, the father of the prosecuting witness, as to the threats of the defendants, should have been excluded as incompetent. We think otherwise. In such cases it is always competent to show previous ill feeling, bad blood, or threats, as tending to show a probable motive for the commission of the crime; and threats or ill feeling towards the father of children to injure him and his family would surely be competent evidence on a criminal...