State v. Sanford, 42731.

• Decision Date: 16 October 1934
• Docket Number: No. 42731.,42731.
• Citation: 218 Iowa 951,256 N.W. 650
• Parties: STATE v. SANFORD.
• Court: Iowa Supreme Court

218 Iowa 951

256 N.W. 650

STATE

v.SANFORD.

No. 42731.

Supreme Court of Iowa.

Oct. 16, 1934.

Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.

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

Reversed.

Yeaman & Yeaman and Bliven & McKinley, all of Sioux City, for appellant.

Edward L. O'Connor, Atty. Gen., and Max Duckworth, Co. Atty., and Thomas E. Murray, Asst. Co. Atty., both of Sioux City, for the State.

CLAUSSEN, Justice.

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.

[1][2] 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 instruct upon this right of the defendant was prejudicial. State v. Goering, 106 Iowa, 636, 77 N. W. 327;State v. Stansberry, 182 Iowa, 908, 166 N....