State v. Ockij

• Citation: 145 N.W. 486,165 Iowa 237
• Parties: STATE v. OCKIJ.
• Decision Date: 10 February 1914
• Court: Iowa Supreme Court

165 Iowa 237

145 N.W. 486

STATE

v.OCKIJ.

Supreme Court of Iowa.

Feb. 10, 1914.

Appeal from District Court, Monroe County; D. M. Anderson, Judge.

Defendant was indicted, charged with the crime of assault with intent to commit murder, was convicted of assault with intent to inflict a great bodily injury, and appeals. Affirmed.John T. Clarkson and N. E. Kendall, both of Albia, and David Streiff, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

PRESTON, J.

[1] 1. It is said the court erred in overruling defendant's motion for a continuance. The motion was based upon the absence of one Gulic, who was desired by defendant as a witness. It appears there were six persons present at the time of the shooting, four besides the defendant and the prosecuting witness. Of these, the prosecuting witness and one other testified for the state, and the defendant for himself. Of the three others, defendant claims two were friendly to the state. Of these two, one had gone to New Mexico, and the whereabouts of the other was unknown. The other, Gulic, was desired as a witness for defendant. It is shown that Gulic left Buxton, in Monroe county, and went to Illinois some two months before the trial; that he promised to return and testify for defendant at the trial, but, instead, went to Pennsylvania.

On April 21, 1913, the case was assigned for trial and set for May 7, 1913. The motion was not made until the day set for trial. The indictment was returned September 19, 1912. It is shown that the defense knew some time before the trial that Gulic was going to leave the state. There was no showing of any attempt to reach the witness, either by mail, telegraph, or by service of subpœna. There is no showing of any effort to locate the witness in Pennsylvania, nor is it shown that his whereabouts in Pennsylvania are known, or any probability that the testimony could be procured if the case had been continued. Under the circumstances, there was no abuse of discretion in overruling the motion.

2. The court did not instruct as to included offenses below that for which defendant was convicted. It is contended by appellant that the court should have instructed as to assault and battery and simple assault, and that, for the failure to do so, there was error. It seems to be admitted by counsel for both the defendant and the state that the test is whether there was any evidence tending to support the lower degrees or grades of the charge in the indictment, and, if so, then the court should not assume the functions of the jury, but should instruct as to such lower degrees of which there is evidence, even though such evidence is not strong.

[2] The court must determine whether there is any substantial evidence of such lower degrees, and, if there is none, it is not error to fail to instruct as to them. It is undoubtedly true that in many cases where a person is charged with assault with intent to inflict great bodily injury, or a higher assault, the lower degrees of assault and battery and simple assault would be included. But this depends upon the character of the assault, the weapon used, the character of the injury, and in the intent.

[3] Because of the verdict, it is not necessary to discuss the higher degrees than that for which the conviction was had. A great bodily injury is an injury to the person of a more grave and serious character than an ordinary battery, but it cannot be definitely defined. State v. Gillett, 56 Iowa, 459, 9 N. W. 362.

[4] Where a person makes an assault on another and inflicts upon him an injury of a more grave and serious character than an ordinary battery, the presumption is warranted that he intended to inflict a great bodily injury, if there is no evidence tending to show that he intended a less injury. State v. Gillett, supra.

[5] The question is: Was there in this case any evidence tending to show that defendant intended less than a great bodily injury, or any evidence upon which a verdict of assault and battery or simple assault could be sustained?

The shooting occurred about June 22, 1912. Andrew Zeber, who is also referred to in the record as Zever, the prosecuting witness, had been expelled or suspended from some lodge or society a week or two before this shooting for nonpayment of dues. As to the transaction in question, he testified that on the night of the shooting he went home to his boarding house, through the room where the shooting afterwards took place, and went on upstairs to his own room. Later he went downstairs and inquired of Green, the proprietor, whether his buddy had come yet, and was told he had not come. That defendant and two or three others were talking about lodge, and Zeber told them it was no use to talk about that there, but to go and talk at the meeting. Defendant said, “Hello, Andrew,” and Zeber said, “Hello.” Continuing in the language of the witness: “He says, ‘I heard you wanted to fight me.’ I say, ‘No, no, John; I never fight nobody; I don't want to fight.’ I say, ‘No, no, John; I know you, John.’ He told me--he says, ‘All right, I will give you this time,’ and he took a pistol from his pocket, quick, straight at my head. When he took the pistol out of his pocket, he was on one side of the table and I on the other; ordinary dining room table, I was talking with him, facing him. When I saw the pistol I put my hand up like that (indicating). I was scared of that pistol. The bullet came just through my arm and struck me here; struck me on the cheek. It was a 32 pistol. The bullet went through my arm and broke the bones. After I was shot John kept his revolver in his hands and went outside.”

On cross-examination, he further testified: “I am sure he said, ‘All right, I will give you this time.’ He took a pistol from his right hip pocket; he had the trigger and shot me right straight to my head. He was pretty close. He measured until he got in line with my face, and then I put my hand like that (indicating). I was scared of the pistol. He measured straight to my head and then shot.”

Zeber was a foreigner, and did not, perhaps, express himself as we would, but we take this last evidence of his to mean that defendant aimed the pistol directly at his head. Another witness gives the distance between them as six feet. Another witness for the state corroborates this witness in these matters. It is clear that Zeber put his arm up before his face when he saw the pistol, just before the shot. This is shown by Zeber's evidence and by the medical evidence. The physician who dressed the wound testifies that Zeber was shot through the forearm and that there was an abrasion on his cheek. He says: “The wound began on the outer surface of the forearm, coming out on the inside; there was a compound commuted fracture, which means that the bone was shattered in small pieces. This long scar was necessary because it was necessary to open it up to go in and get the small pieces of bone. I took from the arm small particles of bone. It appeared to be a bullet wound. I dressed and looked after the arm for a period of 10 or 15 weeks--maybe longer. My attention was called to a wound on the face. I think on the left cheek--what we call an abrasion--simply a loss of skin tissue; it wasn't a deep wound; it was in a streak like.”

Defendant testified in regard to the transaction: “I was to Green's house that night about 9 o'clock. I remember when Mr. Zeber came in. It was about 11 o'clock. I had some money of the society that day, about $60. I had a revolver on my person that night. I had the revolver because I had this money on my person. When Zeber came downstairs, Mike Schleresco says, ‘Andrew, do you see that man, John Ockij, who put you out of the lodge?’ He said, ‘What do you think? That _______ throwed me out!’ I asked him, ‘Andy, I never throwed you out of the lodge; the president, he put you out.’ Zeber appeared to be angry. He called right away to me, ‘What for did I throw him out of the lodge?’ I say, ‘I can't do that; the lodge president stands for that, not me.’ I tell Andy Zeber that way. He says, ‘You damn.’ He took his left hand and got his right hand in his pocket; stick his left hand to my eye. I was behind the table. I got no chance to get out. When I got up, Mr. Gaspar stand up and drop the bottle of beer, and says, ‘You better sit down, you damn son of a b____.’ I had trouble with Gaspar two weeks before that. When Gaspar said that, I grabbed my gun like that because I wanted to get out. I had heard about Zeber running after Jarnico before that with a gun. John Baker told me. At the time he throwed his hand back to his pistol pocket I thought he was going to shoot me--to take my life. Q. Was it in that belief that you pulled your gun? A. I wanted to scare him and wanted to get out. It was after I had made this statement that Gaspar told me to sit down. When I fired the shot I didn't want to shoot anybody. I wanted to scare them and get out. After I fired this shot I backed out of the room because I am scared of them fellows, Mr. Gaspar and Schleresco. I had not had any trouble with Zeber prior to that. I had never had any misunderstanding with him except about this lodge. I never had any desire to injure him at all.”

On cross-examination, he testified: “I knew when I went into Green's house that that was where Zeber boarded. I knew about 4 o'clock that afternoon that he was cursing me and mad at me. I got this lodge money the Sunday before. Q. You carried it around in your pocket ever since--from Sunday until Saturday night? A. No. I sent the money in the bank. I didn't carry any money at Green's house. I went to the bank with the money about 4 o'clock. After I left the bank I was working a little bit and then went to supper. I forgot to leave the revolver. I live two blocks from Green's house. I never saw Zeber when he came in the house or until he came downstairs. He came downstairs when he called me these names. Q. When he...