State v. Grimm, 38967.
| Decision Date | 13 November 1928 |
| Docket Number | No. 38967.,38967. |
| Citation | 221 N.W. 804,206 Iowa 1178 |
| Parties | STATE v. GRIMM. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; D. W. Hamilton, Judge.
Appeal from a judgment entered on a verdict finding the defendant guilty of the crime of assault with intent to inflict a great bodily injury, punishable under section 12934, Code 1924. Affirmed.Walter F. Maley and James E. O'Brien, both of Des Moines, for appellant.
John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.
DE GRAFF, J.
Trial was had on a county attorney's information accusing the defendant Albert Grimm and one Eugene Toney of the crime of assault on Glen H. Sweet with intent to inflict great bodily injury. Grimm was tried separately, resulting in a verdict of guilty as charged. The trial court, however, submitted in the instructions the included offenses of assault and battery and simple assault.
[1] The primary contention of the appellant is that--
“If any crime at all was committed it could not possibly have been more than either simple assault or assault and battery.”
At this point it may be stated that no objections or exceptions were taken to the instructions given to the jury by the trial court. A defendant in a criminal case waives error on appeal in every instance where proper exceptions are not taken below. State v. Jackson (Iowa) 218 N. W. 273, with cases cited.
[2][3][4] Exceptions were taken to rulings made by the trial court in sustaining objections of the state to the following questions asked upon the cross-examination of the prosecuting witness Glen H. Sweet:
Objections to these questions included immateriality, not proper cross-examination, and calling for opinion and conclusion of the witness. Clearly, the reference to scratches on the face of the witness, whether the prosecuting witness was an officer on the evening of the assault, and whether he had a permit to carry a gun, were immaterial. The question whether the witness was “ordinarily able to take care of himself” was subject to all of the objections entered. The permissible range of cross-examination of a witness is a matter largely within the sound discretion of the trial court. We have repeatedly reaffirmed the application of this rule. Further, the matters to which the inquiries were directed on cross-examination do not constitute a basis for impeachment since they were immaterial and irrelevant.
[5][6][7] We now turn to the challenge of the insufficiency of the evidence to sustain the verdict. It may be conceded that the crime of assault with intent to inflict great bodily injury is not susceptible of exact definition, although the crime of assault has a fairly well defined meaning in the realm of criminal law. The gist of the major offense is the intent of the person assaulting at the time of the assault. This intent is disclosed by the circumstances attending the assault, together with all relevant facts and circumstances antedating the assault. State v. Schumann, 187 Iowa, 1212, 175 N. W. 75;State v. Steinke, 185 Iowa, 481, 170 N. W. 801. Assault to do great bodily injury is not circumscribed or limited per se by the fact that the accused at the time of the assault used simply his fists.
[8][9] There is no burden placed upon the state to prove that the defendant charged with the major offense, as in this case, used a club, billy, or other means or instrument whereby a more grievous injury could have been accomplished. It is said in State v. Steinke, supra:
“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.”
The quantum of injury may be taken into consideration by the jury in determining the defendant's intent, but it is not in itself determinative of that intent. See, also, State v. Brackey, 175 Iowa, 599, 157 N. W. 198;State v. Sayles, 173 Iowa, 374, 155 N. W. 837;State v. Dickson, 200 Iowa, 17, 202 N. W. 225.
[10][11] With these applicable legal principles in mind, let us examine the record evidence. The prosecuting witness, Glen H. Sweet, was an “undercover” in the employ of the state and federal agencies for the enforcement of the prohibitory liquor law. He was in the performance of his duties in Jasper county, Iowa, during the time immediately preceding the date of the assault, to wit, May 21, 1927. On May 20, 1927, he had arrested the two brothers of the defendant Albert. On the following day the defendant, Albert Grimm, went from Newton to Des Moines to secure appearance bonds for his brothers, but was unsuccessful. About 8 o'clock on that evening the defendant and Eugene Toney were sitting outside a pool hall in Newton, where a casual conversation was had with W. E. Horn, a police officer in the city of Newton. The subject of this conversation involved Glen H. Sweet. Toney made inquiry of the whereabouts of Sweet, referring to the latter as Horn's friend. Apparently Horn did not understand to whom the reference was made, and to the question said, “What do you mean?” Toney said, “The stool pigeon--the fellow...
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