State v. Sanford

• Decision Date: 16 October 1934
• Docket Number: 42731
• Citation: 256 N.W. 650,218 Iowa 951
• Parties: STATE OF IOWA, Appellee, v. GEORGE SANFORD, Appellant
• Court: Iowa Supreme Court

256 N.W. 650

218 Iowa 951

STATE OF IOWA, Appellee, v. GEORGE SANFORD, Appellant

No. 42731

Supreme Court of Iowa, Des Moines

October 16, 1934

Appeal from Woodbury District Court.--A. O. WAKEFIELD, Judge.

Appeal from judgment on verdict finding defendant guilty of assault and battery.

Reversed.

Yeaman & Yeaman and Bliven & McKinley, for appellant.

Edward L. O'Connor, Attorney-general, and Max Duckworth, County Attorney, and Thomas E. Murray, Assistant County Attorney for appellee.

CLAUSSEN J. MITCHELL, C. J., and STEVENS, ANDERSON, and KINTZINGER JJ., concur.

OPINION

CLAUSSEN, J.

The defendant was indicted by the grand jury of Woodbury county for the crime of assault with the intent to inflict great bodily injury. The case was tried to a jury which returned a verdict finding the defendant guilty of assault and battery. The record brings before us but one question requiring consideration.

The defendant contended that he acted in self-defense. In instructing the jury on the right of self-defense the court properly stated the law respecting the right of the defendant, if he reasonably believed himself in danger of sustaining great bodily injury or losing his life, to inflict great bodily injury in self-defense, and his duty to retreat before inflicting such injury. In the instruction the court advised the jury that if no greater force or more hazardous means were used by the defendant to protect his life and person than really appeared to him to be necessary as a prudent and courageous man under the surrounding circumstances, the use of such force or means was not unlawful. The court at no place advised the jury that one assailed need not retreat, but may repel force with force, short of inflicting great bodily injury or taking life. State v. Brackey, 175 Iowa 599, 157 N.W. 198; State v. Gough, 187 Iowa 363, 174 N.W. 279; State v. Goering, 106 Iowa 636, 77 N.W. 327.

The trial court submitted the crime of assault and battery as an included offense. It was the duty of the court on its own motion to fully and correctly state the law in relation to this offense and, in view of the defense made, to advise the jury of the defendant's right of self-defense as it related to the crime of assault and battery. The jury were not advised in the instructions that the defendant need not retreat before repelling the assault with force short of inflicting great bodily injury. The failure of the court to...