State v. McGuire

• Decision Date: 21 January 1893
• Citation: 54 N.W. 202,87 Iowa 142
• Parties: STATE v. MCGUIRE.
• Court: Iowa Supreme Court

87 Iowa 142

54 N.W. 202

STATE

v.MCGUIRE.

Supreme Court of Iowa.

Jan. 21, 1893.

Appeal from district court, Benton county; John R. Caldwell, Judge.

Indictment for an assault with intent to commit manslaughter. Verdict of guilty, and a judgment from which the defendant appealed.Tom H. Milner, for appellant.

John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State.

GRANGER, J.

1. The indictment is assailed by demurrer, on the ground that, under the law, there is no such crime as an assault with intent to commit manslaughter. Manslaughter is a crime by an express provision of the Code, § 3856, and punishable by imprisonment in the penitentiary, which makes it a felony. The query is, is an unlawful act involving intent to commit such a crime punishable in the same manner? If it is, it is a felony, and hence indictable. By Code, § 3876, it is provided: “If any person assault another with intent to commit any felony or crime punishable by imprisonment in the penitentiary where the punishment is not otherwise prescribed, he shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding five hundred dollars, and imprisonment in the county jail not more than one year.” The language of the section specifically provides that an assault with intent to commit any crime punishable by imprisonment in the penitentiary is an indictable offense. Manslaughter is a crime so punishable, and, to our minds, the conclusion is unavoidable that an assault with intent to commit manslaughter is plainly comprehended by the language of the section, and made an offense punishable as a felony, and therefore indictable. The case of State v. White, 45 Iowa, 325, received unusually careful consideration, as will be seen by a reference, also, to same case in 41 Iowa, 316. In that case, as at last reported, it is said: “Under section 3876 an assault with intent to commit manslaughter may be indicted and punished.” We are told in argument that the expression is not a dictum, and not controlling, because in that case the indictment was for an assault with intent to commit murder, and the conviction only of an assault with intent to commit manslaughter. In this case the point is definitely presented as to the validity of an indictment for such an offense. There could be no dispute but that the question was presented in that case of there being, under the law, such an offense for which there could be a conviction and punishment, and we think a proper determination of such questions necessarily leads to the question whether or not such an offense is properly presentable by indictment. We can hardly conceive of a reason for the conclusion that a conviction could be sustained of an assault to commit manslaughter where the indictment charged an assault with intent to commit murder, if the facts upon which the conviction was sustained would not sustain an indictment for such an offense. We think the precise question now presented was properly determined in State v. White. Appellant presents an argument leading to the conclusion that the intent necessary to the crime charged is the same as malice essential to murder, and it is said: “There is no method of reasoning whereby the human mind can form an intent to assault another with intent to kill him, and come or fall short of assault with intent to commit murder.” That a person may, without malice, unlawfully and intentionally take the life of another, is to our minds too plain a proposition to admit of dispute. Such a taking of human life is not murder; it is manslaughter. The intent to take life is not necessarily an element of the crime. It may, however, be committed with such an intent; and when an assault with...