State v. Merkley

Decision Date04 September 1888
Citation39 N.W. 111,74 Iowa 695
PartiesSTATE v. MERKLEY ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Appanoose county; DELL STUART, Judge.

Indictment for an assault with intent to commit murder. Trial by jury; verdict, “Guilty of an assault with intent to commit manslaughter;” judgment; and the defendant appeals.Mabry & Morrison, for appellants.

A. J. Baker, Atty. Gen., George D. Porter, and J. A. Elliott, for the State.

SEEVERS, C. J.

There are two counts in the indictment. The first charges that on the 10th day of October, 1887, the defendants, with a hot iron, did feloniously, willfully, and maliciously make an assault in and upon Maggie Vermulin, and with said iron burn and mutilate, beat, and bruise the body, arms, and legs of said Maggie, with intent to kill and murder. The second count charges that the assault was made with a hot iron, and by beating and striking with a stick of wood, and that the defendants did then and there willfully, intentionally, unreasonably expose Maggie Vermulin “to the rigors of the weather, by forcing the said Maggie from shelter out into the cold and severe weather, where she would endanger her life, freeze, and die, said Maggie not being properly clad; and said defendant did then and there feloniously, willfully, intentionally, unlawfully, and maliciously neglect and refuse to nourish the said Maggie Vermulin, as they were under legal obligations to do, she being their adopted daughter of eleven years of age, and under their care and control, * * * with the specific, felonious, and unlawful intent the said Maggie Vermulin then and there to kill and murder.”

1. Upon the state offering evidence to support the indictment, the defendants objected thereto, because two or more distinct offenses were charged in the indictment, and also at the proper time moved the court to require the state to elect upon which count it would try the defendants. The objection was overruled, and the court refused to require the state to elect. The state proceeded to introduce evidence, and it tended to show that the defendants burned the said Maggie by applying to her body a hot iron on three different occasions, about one week apart. Thereupon the defendants moved the court to require the state to elect upon which of such burnings it would rely for a conviction. This motion was overruled. Thereupon the state offered evidence tending to show the said Maggie had been starved, and not provided with sufficient food by defendants. To this evidence the defendants objected, on the ground that it tended to establish a separate and distinct offense. The objection was overruled, and the defendants again moved the court to require the state to elect upon which offense charged in the second count it would ask a conviction, and the state elected that a conviction would be asked on the allegations in the second count, that defendants had neglected and refused to nourish, sustain, and provide for the said Maggie, as they were under legal obligations to do.

2. The defendants objected to the introduction of any evidence under the second count in the indictment, upon the ground that no crime was charged, and we think the court erred in holding that a crime was charged, and submitting to the jury the issue arising under such count. It will be observed that the indictment fails to charge that the defendants had the means or were pecuniarily able to...

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5 cases
  • Commonwealth v. Danz
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 17, 1905
    ...136; Medina v. State, 49 S.W. Repr. 380; Pritchett v. State, 92 Ga. 65 (18 S.E. Repr. 536); State v. Patza, 3 La. Ann. 512; State v. Merkley, 74 Ia. 695 (39 N.W. 111); Hamilton v. State, 56 S.W. Repr. (Texas), State v. Walters, 45 Ia. 389; State v. Rohfrischt, 12 La. Ann. 382; Com. v. McCar......
  • Sprague v. State
    • United States
    • Supreme Court of Indiana
    • June 24, 1932
    ...259;People v. Gibson, 218 N. Y. 70, 112 N. E. 730, Ann. Cas. 1918B, 509;Lamson v. Boyden, 160 Ill. 613, 43 N. E. 781;State v. Merkley, 74 Iowa, 695, 698, 39 N. W. 111;Bain v. United States (C. C. A.) 262 F. 664. We cannot say what effect Exhibit B and appellant's noncompliance therewith mig......
  • Sprague v. State
    • United States
    • Supreme Court of Indiana
    • June 24, 1932
    ......213, 222, 116 A. 828;. Gillespie v. State (1911), 5 Okla. Crim. 546, 115 P. 620, 35 L. R. A. (N. S.) 1171, Ann. Cas. 1912D. 259; People v. Gibson (1916), 218 N.Y. 70,. 112 N.E. 730, Ann. Cas. 1918B 509; Lamson v. Boyden (1896), 160 Ill. 613, 43 N.E. 781;. State v. Merkley (1888), 74 Iowa 695, 698,. 39 N.W. 111; Bain v. United States (1920),. 262 F. 664. . .          We. cannot say what effect Exhibit B and appellant's. non-compliance therewith might have had on the jury. It could. have reasonably inferred that the books specified in the. ......
  • State v. Bolton
    • United States
    • United States State Supreme Court of Vermont
    • October 8, 1917
    ...counsel that such course was proper. Error was found by the Circuit Court of Appeals. Another case relied on by the respondent is State v. Merkley, 74 Iowa, 695. 39 N. W. 111. In that case the court itself questioned respondents, who had not offered themselves as witnesses, as to their of t......
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