State v. Schele

• Decision Date: 10 December 1879
• Citation: 3 N.W. 632,52 Iowa 608
• Parties: THE STATE OF IOWA, APPELLEE, v. CARL SCHELE, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 608

3 N.W. 632

THE STATE OF IOWA, APPELLEE,

v.CARL SCHELE, APPELLANT.

Supreme Court of Iowa.

Filed December 10, 1879.

Appeal from Muscatine district court.

The defendant was indicted for an assault with intent to commit murder. He was tried and found guilty of an assault with intent to inflict great bodily injury. The defendant filed a motion in arrest of judgment and for a new trial. This motion was overruled upon all the grounds except one. The motion was sustained upon the ground that the court had misdirected the jury in instructing them that they “could consider the crime of an assault with intent to commit great bodily injury, and find the defendant guilty thereof, if the evidence warranted such finding.” The court thereupon ordered that the verdict stand as for an assault only, and sentenced the defendant to pay a fine of $100 and the costs of prosecution. The defendant appeals.D. C. Cloud and George R. Cloud, for appellant.

J. F. McJunkin, Attorney General, for the state.

DAY, J.

1. Counsel for the appellant insist that the court erred in instructing the jury that they could consider the crime of an assault with intent to do great bodily injury, and find the defendant guilty thereof if the evidence warranted such finding. They cite and rely upon State of Iowa v. White, 41 Iowa, 317. The court below, in sustaining the motion in arrest of judgment to the extent and upon the ground stated, evidently followed that case as above reported. Upon a rehearing, however, which was granted in that case, a different conclusion was reached, and it was held that an indictment for an assault with intent to commit murder does include the offence of an assault with intent to commit manslaughter. State v. White, 45 Iowa, 325. For a like reason such an indictment includes the offence of assault with intent to inflict great bodily injury.

The court did not err in giving the instruction complained of. The error of the court was in sustaining the motion in arrest of judgment upon the ground that there was error in said instruction. But this error was not prejudicial to the defendant, and of it he cannot complain.

2. It is insisted that the court, having found that the defendant could not, under the indictment, be convicted of an assault with intent to inflict great bodily injury, should have set aside the verdict in toto and granted a new trial. The court overruled all the grounds of the motion for a new trial except the one above stated....