State v. Rainsbarger

• Decision Date: 09 May 1890
• Citation: 45 N.W. 302,79 Iowa 745
• Parties: THE STATE v. RAINSBARGER
• Court: Iowa Supreme Court

45 N.W. 302

79 Iowa 745

THE STATE v. RAINSBARGER

Supreme Court of Iowa, Des Moines

May 9, 1890

Decided May, 1890.

Appeal from Hardin District Court.--HON. D. D. MIRACLE, Judge.

DEFENDANT was indicted by the grand jury of Hardin county for the crime of assault with intent to commit murder, alleged to have been committed as follows: "The said Joseph Rainsbarger, on the twenty-seventh day of February, 1886, in the county aforesaid, in and upon one Christian Smith, did commit an assault with a deadly weapon, being a revolver loaded with powder and ball, and held in the hands of the said Joseph Rainsbarger, then and there did wilfully, feloniously, and with malice aforethought, shoot off and discharge the contents of said revolver at and against the said Christian Smith, with specific intent, then and there, him, the said Christian Smith, to kill and murder, contrary to the law." Defendant having pleaded not guilty, the case was submitted to a jury, and a verdict returned finding the defendant guilty of an assault with intent to inflict great bodily injury. Defendant's motion for a new trial was overruled, and judgment entered on the verdict, to all of which the defendant excepted, and from which judgment he appeals.

AFFIRMED.

Albrook & Hardin, for appellant.

H. L Huff and John Y. Stone, Attorney General, for the State.

OPINION

GIVEN, J.

I.

Counsel for appellant urge in argument that the evidence is insufficient to sustain the verdict, and that the court erred in giving and refusing certain instructions. The testimony shows without conflict that about five o'clock p. m., of the day named, the defendant was on horseback, in the road in front of Christian Smith's house, and that he then and there discharged a revolver once or twice. That at that time Smith was squatted down alongside of his corn-crib, his back towards the gate opening into the highway, engaged in picking up corn from the ground. Smith testifies that on hearing the first shot he made a couple of steps towards the gate, and saw the defendant sitting on his horse at about the center of the gate, and that defendant then fired a second shot at him that he heard the first ball whiz past his head; that after firing a second shot the defendant rode a little ways south and then returned, and hitched his horse at the gate, came into the yard, and used profane, abusive and threatening language towards him (Smith); that at the time the second shot was fired his (Smith's) dog was in the yard, between him and the defendant. Smith is corroborated by several witnesses as to the number of shots fired, and what took place after the second shot. Defendant testified that he did not see Smith at the time he fired the revolver; that he shot at the dog, and that when Smith jumped up and hallooed he told him that he was shooting at the dog; that he had no ill feeling towards Smith; that the dog was south of the gate when he shot at him; that he only shot once; that he did not stop at the gate, did not go into Smith's yard, and did not swear at him, nor call him hard names. John Rainsbarger brother of the defendant, testified that he was in a field thirty rods distant; heard one shot; saw Smith's dog there; that defendant was ten yards south of the gate when he shot; that the dog was running and barking at the horse; that he did not hear a second shot; nor see defendant stop at the gate. There is considerable testimony as to...