State v. Schmidt

Citation259 Iowa 972,145 N.W.2d 631
Decision Date18 October 1966
Docket NumberNo. 52170,52170
PartiesSTATE of Iowa, Appellee, v. David Joseph SCHMIDT, Appellant.
CourtIowa Supreme Court

Paul D. Lunde, Ames, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Charles E. Vanderbur, Story County Atty., for appellee.

MOORE, Justice.

October 15, 1965, defendant, David Joseph Schmidt, was charged by county attorney information in Story County with the crime of assault with intent to inflict great bodily injury in violation of section 694.6, Code 1962, to which he entered a plea of not guilty. On trial of the cause the jury returned a verdict of guilty. On January 17, 1966 defendant was sentenced to the Men's Reformatory at Anamosa for one year. From this judgment and sentence he has appealed. We affirm.

Appellant contends the trial court erred in: (1) ruling the evidence established a jury question on the essential element of specific intent to inflict great bodily injury, (2) overruling defendant's motion for a directed verdict, (3) overruling his objection to evidence of state's witness Nath, (4) failing to give instructions requested by him, (5) giving instruction to which he claims he objected and (6) allowing the county attorney to make improper statements during his rebuttal argument. Defendant's court appointed attorney also asserts the trial court erred in failing to allow a reasonable attorney fee on his application filed and ruled on many weeks after the appeal was taken.

At the close of the state's case in chief defendant made a motion for a directed verdict on the ground a jury question had not been established on the essential elements of the crime charged. The main thrust of his motion was a claimed lack of evidence of a specific intent to inflict great bodily injury.

After defendant's motion for a directed verdict was overruled he elected not to offer any evidence. His motion was not renewed. We shall consider his motion as made at the close of the record. In doing so we take the evidence in its most favorable light to the state.

The following is a reasonable summary of the state's evidence. Each witness was vigorously and thoroughly cross-examined.

About 1:45 a.m. September 8, 1965 Walter L. Johnston, an Ames policeman assigned to patrol downtown Ames while visiting with merchant policeman Edward E. Allen, heard loud talking from behind the Maidrite which he immediately investigated. He there found defendant and Jerome Matuseski arguing and preparing to fight. Both were unknown to the officer. Johnston told them they were being pretty loud, they had a little too much to drink, they better break it up or they could be taken in for intoxication and asked them to go home.

One of the two men replied they were going to Dave's Lounge, located nearby. Defendant then came nearer the squad car and said: 'Don't sweat this none, we are going. Don't worry about it.' After some urging by Matuseski defendant left and the two men walked toward the lounge. They went by that establishment and entered an alley.

Being aware there had been recent unsolved breakins in the area Johnston drove around and into the alley where he found only defendant and asked him for his driver's license. Defendant informed the officer he had no driver's license and when asked where his 'buddy' was said, 'what buddy? I don't have a buddy'. The officer then requested defendant to enter the police car and when it became apparent he was not going to do so, the officer made a radio call for assistance. About this time Matuseski appeared. As the officer was replacing the radio microphone he was struck by defendant on or near his left temple. The officer assumed defendant had struck him with his fist. Johnston was at least momentarily rendered unconscious. He was not aware of any further use of the radio. Other witnesses heard him call 'help' three times on the radio.

After regaining his consciousness or composure Johnston got out of the squad car and found defendant some distance away crouched in an alley with his hand on a pop bottle. Johnston after pulling his gun took defendant into custody.

Upon hearing Johnston's call for help, Sergeant Ball and officer Paul of the Ames police department and the merchant policeman in separate vehicles went to the scene where they found defendant in Johnston's custody. Defendant called them profane names and challenged them all to physical combat.

When Sergeant Ball approached, defendant's first words were 'Get it started you s-o-b, start swinging'. When Ball told defendant Johnston was a new young officer Schmidt said: 'To hell with him then, he can't prove it.' Defendant was then taken to the Ames jail where one of his cellmates was Bruce Allen Nath.

On cross-examination Ball testified he had arrested defendant on prior occasions, including an arrest for operating a motor vehicle while intoxicated and malicious injury to a building, he had been struck by defendant and another officer suffered pulled ligaments and separated ribs when defendant fought the officer. At the scene defendant informed Ball he hated his 'guts'.

Nath testified defendant was loud and boisterous in the jail and referred to all policemen as chicken * * * and punks. Nath testified defendant said: 'I really showed them cops tonight. Man, I powed him. Man, I really smashed him, I really got him good.'

Immediately after the blow Johnston was stunned, confused and apparently momentarily unconscious. On the way to the police station he complained of his head hurting and his eyes would not focus. His head was swollen and red. His ears rang. About 9:00 a.m. that morning he saw a doctor, xrays were taken and his condition diagnosed as a contusion on the left side of his head and a mild concussion. He felt sick the next day and took pills for his headache which persisted for approximately two and a half months. He was off work six days. His injury was not permanent and apparently he had no residual effects from the blow.

I. Defendant's first two assignments of error challenge the sufficiency of the evidence to justify his conviction of the charge of assault with intent to inflict great bodily injury. His argument the evidence is insufficient to establish he struck the blow merits little comment. The officer's testimony and defendant's statements clearly make this a question for the jury.

The crime charged here is not susceptible of exact definition. It is also difficult to define with exactness or definite limitations just what a great bodily injury is. We have said at different times it is an injury to the person of a more grave and serious character than an ordinary battery but it cannot be definitely defined. The gist of the offense is the intent, which is seldom capable of direct proof and ordinarily is disclosed by all the circumstances attending the assault, together with all relevant facts and circumstances as disclosed by the evidence. The extent of the injury, if any, although not in itself determinative of the intent, may be considered as bearing thereon. State v. Gillett, 56 Iowa 459, 9 N.W. 362; State v. Ockij, 165 Iowa 237, 145 N.W. 486; State v. Dickson, 200 Iowa 17, 202 N.W. 225; State v. Grimm, 206 Iowa 1178, 221 N.W. 804; State v. Crandall, 227 Iowa 311, 288 N.W. 85; State v. Van, 232 Iowa 34, 2 N.W.2d 748; State v. Sommer, 249 Iowa 160, 86 N.W.2d 115. In the Gillett, Ockij, Crandall and Van cases we refer to the well-established principle that a person is presumed to have intended the natural result of his intentional act.

With these principles in mind our review of the record leads us to conclude it was for the jury to say whether the defendant had the essential intent which is the gist of the crime charged. In the Dickson, Grimm, Crandall and Van cases we affirmed convictions of assault with intent to inflict great bodily injury where defendants used only fists.

II. Defendant's third assignment of error is difficult to understand. His only objection to the testimony of Nath, defendant's cellmate, when offered was that it was hearsay. The trial court correctly overruled this objection. Nath was only asked to relate the statements voluntarily made to him by defendant. They were admissions against interest and tended to establish material facts in the case. As such they were admissible. 31A C.J.S. Evidence § 272; 20 Am.Jur., Evidence, section 544; McCormick on Evidence, sections 241, 246; Jones on Evidence, 5th Ed., sections 334, 398.

Defendant's counsel for the first time asserts in his brief that allowing Nath's testimony resulted in denial of a fair trial. He argues the trial court should have attempted to ascertain whether Nath had any knowledge of the facts in the case. No such request was made to the trial court. The record discloses Nath only stated what defendant had said and done soon after his arrest. Defendant's third assignment of error is without merit.

III. A study of the record leads us to conclude defendant's fourth and fifth assignments of error must be considered together. After both sides rested the record discloses 'the Court provided counsel with a rough draft of the proposed instructions.' Thereafter an in chambers discussion was held. There was no statement or stipulation indicating it was anything other than rough draft procedure. The proposed instructions prepared by the court were not all numbered.

During this discussion both counsel expressed a desire an intoxication instruction which was included in the rough draft be not given to which the trial court agreed. Defendant's attorney objected to the inclusion of two included offenses, assault and battery and simple assault as he felt only simple assault was raised by the evidence. The trial court expressed disagreement with this proposal. Defendant's counsel also objected to other proposed instructions and asked that other instructions which he requested be given in lieu thereof. As to one...

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37 cases
  • State v. Carey
    • United States
    • Iowa Supreme Court
    • February 11, 1969
    ...discussion heretofore mentioned and the objections there urged cannot serve as grounds for defendant's appeal. State v. Schmidt, 259 Iowa 972, 980, 145 N.W.2d 631, 636, and citations. However, we cannot entirely disregard them when considering the instruction given by the court. It is appar......
  • State v. Lewis
    • United States
    • Iowa Supreme Court
    • May 19, 1976
    ...The State relies on rule 196, Rules of Civil Procedure, and State v. Clark, 187 N.W.2d 717, 719 (Iowa 1971) and State v. Schmidt, 259 Iowa 972, 979--980, 145 N.W.2d 631, 636, as support for its The trial transcript discloses the following record was made: 'The Court is going to have the rep......
  • State v. Levy
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    • Iowa Supreme Court
    • July 18, 1968
    ...does not show such an abuse of discretion here.' See also State v. Wallace, 259 Iowa 765, 771--772, 145 N.W.2d 615; State v. Schmidt, 259 Iowa 972, 980--981, 145 N.W.2d 631; State v. Tornquist, 254 Iowa 1135, 1139--1142, 120 N.W.2d 483; and 5 Am.Jur.2d, Appeal and Error, Section 896, page B......
  • State v. Hraha
    • United States
    • Iowa Supreme Court
    • January 14, 1972
    ...which is applicable to instructions of juries in trials of criminal prosecutions. Section 780.35, The Code 1966. State v. Schmidt, 259 Iowa 972, 979, 145 N.W.2d 631, 636, certiorari denied 386 U.S. 965, 87 S.Ct. 1046, 18 L.Ed.2d 115. Although the problem considered in the cited case dealt w......
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