State v. Keasling

• Decision Date: 24 May 1888
• Citation: 74 Iowa 528,38 N.W. 397
• Parties: STATE v. KEASLING.
• Court: Iowa Supreme Court

74 Iowa 528

38 N.W. 397

STATE

v.KEASLING.

Supreme Court of Iowa.

May 24, 1888.

Appeal from district court, Keokuk county; W. R. LEWIS, Judge.

The defendant, Mathias Keasling, was convicted by the verdict of a jury of the crime of assault with intent to commit murder. The district court overruled his motion for a new trial, and pronounced judgment against him, imposing a term of imprisonment in the penitentiary. The judgment entry contains the following recital: “And the court, however, finding on trial that there is no evidence sufficient to warrant conviction of defendant of the crime of assault with intent to commit murder, but that the verdict is sufficiently supported by the evidence to sustain conviction for the crime of assault with intent to commit manslaughter, inflicts no more than the penalty for this crime.” The defendant appealed.A. J. Baker, Atty. Gen., for the State.

Mackey & Fonda, for defendant.

REED, J., ( after stating the facts as above.)

1. The following is a copy of the indictment: “The said Mathias Keasling, at the county of Keokuk,” etc., “on the 15th day of November, 1886, did then and there, with a certain pistol, the particular description of which is to the grand jury unknown, the said pistol being loaded and charged with gunpowder and leaden balls, the said pistol being a dangerous and deadly weapon with which the said Mathias Keasling was armed, and the said Mathias Keasling did then and there unlawfully, deliberately, feloniously, and with malice aforethought, make an assault in and upon one John Ruby, and did then and there unlawfully and feloniously shoot off and discharge the contents of said pistol at, against, into, and through the arm of said John Ruby, with a felonious intent then and there to kill and murder the said John Ruby contrary to and in violation of law.” It was contended that this indictment does not charge all of the elements of the crime of assault with intent to commit murder, and that the court therefore erred in putting the defendant on trial for that offense. It is true, doubtless, that with the additional averment that the wound inflicted by defendant was mortal, and that death had resulted therefrom, the indictment would not have been sufficient as an indictment for murder of the first degree. State v. McCormick, 27 Iowa, 402;State v. Walkins,Id. 415. The position of counsel is that, to constitute the crime of assault with intent to commit murder, the facts must be such that, if death had resulted, the crime would have been murder of the first degree; and this view was expressed by the district court in one of the instructions to the jury. But the position is not correct. Murder is the killing of a human being with malice aforethought, express or implied. Code, § 3848. Murder perpetrated by means of poison, or lying in wait, or when the killing is willful, deliberate, and premeditated, or is committed in the perpetration, or attempt to perpetrate, certain named felonies, is of the first degree, while murder otherwise committed is of the second degree. Sections 3849, 3850. Willfulness, or an intent to kill, (except when the crime is committed in the perpetration or attempted perpetration of some of the felonies named,) is an element of murder of the first degree. But the crime is not necessarily of that degree because the killing was willful; for the elements of deliberation and premeditation may have been wanting, each of which is an essential element of that crime. An indictment charging a willful killing, with malice aforethought, would be good as an indictment for murder, but not for murder of the first degree. The crime denounced by section 3872 (under which this indictment was found) is assault with intent to commit murder. An intent to commit murder necessarily includes a specific intent to kill; but neither deliberation nor premeditation is an essential element of that crime, for neither is essential to murder. The elements of the crime are -- First, the assault; second, the specific intent to kill; and third, malice aforethought. Each of these elements is charged in the indictment. In order, therefore, to sustain it as an indictment for assault with intent to commit murder, it is not necessary to go as far as this court went in State v. Newberry, 26 Iowa, 467, where it was held that an intent to commit murder necessarily comprehended all the elements of murder, and that an averment that the assault was with the intent to kill and murder was equivalent to charging that it was committed with malice aforethought.

2. It was contended that, when the court determined that the verdict of guilty of assault with intent to commit murder was not sustained, the defendant, as matter of right, was entitled to a new trial. But he could properly be convicted, under this indictment, of any offense less than that charged in express terms which is necessarily included in that charged. The verdict implies a finding by the jury (1) that defendant's act in firing the shot was unlawful; (2) that he committed the act with the intent to take the life of Ruby; and (3) that the act was committed with malice aforethought. But the court was of opinion that, while the finding as to the first of the two facts was sustained by the evidence, the element of malice aforethought was not proven. But that is not an element of assault with intent to commit manslaughter. Every element of that...