State v. Marish

• Decision Date: 26 September 1924
• Docket Number: No. 35708.,35708.
• Parties: STATE v. MARISH. STATE v. BJOLOBRKOVICH.
• Court: Iowa Supreme Court

198 Iowa 602

200 N.W. 5

STATE

v.MARISH.

STATE

v.BJOLOBRKOVICH.

No. 35708.

Supreme Court of Iowa.

Sept. 26, 1924.

Appeal from District Court, Cerro Gordo County; M. F. Edwards, Judge.

The defendants were separately indicted for murder. They were tried together by agreement, and found guilty of assault with intent to commit manslaughter. From judgments pronounced upon the verdicts they appeal. Reversed and remanded.Robinson & Boomhower and Senneff, Bliss, Witwer & Senneff, all of Mason City, for appellants.

Ben J. Gibson, Atty. Gen., and W. P. Butler, Co. Atty., R. S. Stanbery and J. E. Williams, all of Mason City, for the State.

VERMILION, J.

The defendants were separately indicted, charged with murder in the first degree, for the killing of one Pete Georgeovich. By agreement the two cases were consolidated for the purpose of trial and tried together, resulting in verdicts finding both defendants guilty of assault with intent to commit manslaughter.

It is without dispute that the defendants, on one side, and the deceased, with one Walter Myuscovich, on the other, became engaged in a fight on the street in Mason City, and that during the encounter Georgeovich was shot and killed. Five bullet wounds were found in his body. Of these two were not fatal, two would not have been necessarily immediately fatal, and one would have caused immediate death. The order in which the wounds were received is not clear. There was evidence tending to show that both the defendants shot at Georgeovich both before and after he was down. After the conflict he was found to be dead, but at just what instant death occurred, whether before or after all of the wounds were inflicted, is not shown.

There was a sharp dispute in the evidence as to how the conflict started, as to who were the aggressors, and as to whether the deceased and Myuscovich were armed. No claim is made that the evidence was not sufficient to sustain the verdicts. The errors assigned relate to the rulings on the admission of evidence and the instructions given by the court to the jury.

[1] The jury was instructed that the defendants might be found guilty of murder in either the first or second degree, manslaughter, assault with intent to commit murder, or assault with intent to commit manslaughter. No lower offenses were submitted, and this is assigned as error. Without entering upon any detailed recital of the evidence, it will be sufficient, for the present purpose, to say that it was neither conceded nor conclusively shown that the wound or wounds causing the death of Georgeovich were inflicted by either of the defendants. While there was testimony from which it might well have been found that such was the fact, there is also testimony tending to show that at the time deceased fell he was between the defendants and Myuscovich, and the latter was shooting toward the defendants. The fight occurred at night, and there was much confusion. There was testimony that as many as 15 or 16 shots were fired. The jury might have found, under the testimony, that the defendants made an assault upon the deceased, but have failed to find that his death was caused by a wound inflicted by either of them. Under such circumstances, it is plain the defendants might properly have been found guilty of an offense less than manslaughter, and that it was therefore proper to submit included offenses less than manslaughter.

The verdict indicates beyond question that it was so found that the defendants were guilty of a felonious assault, but not guilty of a felonious homicide. The situation does not call for any discussion as to when and under what circumstances the court, upon a trial of one charged with murder or manslaughter, should submit as included offenses the various grades of assault. That subject has been exhaustively considered and the authorities reviewed in the recent case of State v. Shaver (Iowa) 198 N. W. 329. Netwithstanding the writer's inability to agree with all that is said in that case, no difficulty is experienced in saying that, under the testimony presented here, included offenses below manslaughter were proper to be submitted. This is not, as we have seen, a case where it can be said the defendants were guilty of manslaughter or nothing, and does not, therefore, come within that class of cases where, the trial court having submitted lower offenses than the evidence required, and the defendant having been found guilty of a lower offense, it is held he cannot complain because the jury was more lenient with him than the evidence warranted.

[2][3][4] The question is not as to the necessity of submitting offenses lower than manslaughter; it is narrower than that. Where the court, upon the trial of an indictment for murder, properly submitted assault with intent to commit murder and assault with intent to commit manslaughter, and the defendants were convicted of the latter crime, was it error not to submit the still lower offenses? If the defendants were guilty of an assault, the character of the assault would depend upon the intent with which it was committed. The intent of the perpetrators was a question for the jury. By what criterion could the court determine that their intent was such as to make the crime assault with intent to commit manslaughter, rather than assault with intent to inflict a great bodily injury? The use of a deadly weapon would not necessarily so show, nor would the character of the wounds. It was clearly a question for the jury as to what wounds were inflicted by the defendants. The crime of an assault with intent to commit manslaughter, while somewhat anomalous in some aspects, is recognized as included in a charge of assault with intent to commit murder. State v. White, 45 Iowa, 325;State v. Postal, 83 Iowa, 460, 50 N. W. 207;State v. McGuire, 87 Iowa, 142, 54 N. W. 202;State v. Bunn, 195 Iowa, 9, 190 N. W. 155, and other cases there cited. Assault with intent to inflict a great bodily injury is also included in a charge of assault with intent to commit murder, and should be submitted when there is evidence to support a finding of guilt of the lower offense. State v. Ockij, 165...