State v. Shea

• Decision Date: 06 April 1898
• Citation: 104 Iowa 724,74 N.W. 687
• Parties: STATE v. SHEA.
• Court: Iowa Supreme Court

104 Iowa 724

74 N.W. 687

STATE

v.SHEA.

Supreme Court of Iowa.

April 6, 1898.

Appeal from district court, Wapello county; T. M. Fee, Judge.

Defendant was indicted for the crime of an assault with intent to commit murder. He was convicted of an assault with intent to do a great bodily injury, and from the sentence imposed appeals. Reversed.Steck & Smith, for appellant.

Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

DEEMER, C. J.

Appellant and one Adams engaged in a quarrel upon one of the streets in the city of Ottumwa, resulting in the exchange of several shots between them, one of which took effect upon Adams' arm. The shooting is admitted, but appellant claims that his act in so doing was in defense of his person against the attack of Adams. There is evidence which justified the jury in finding that defendant was the aggressor, and appellant's claim that the verdict is without support is of no merit.

2. In the seventh instruction to the jury the court said: “(7) Whoever assaults another person with the intent to inflict upon such person some injury of a more grave and serious character than an ordinary battery is guilty of an assault with intent to inflict a great bodily injury.” This instruction is clearly erroneous. It overlooks a material ingredient of the offense, to wit, the unlawfulness of the assault. State v. Wyatt, 76 Iowa, 328, 41 N. W. 31;State v. Smith (Iowa) 72 N. W. 279. The attorney general contends that the error, if any, was without prejudice, for the reason that the instructions as a whole required a finding by the jury that the assault was unlawful before they would be justified in finding a verdict of guilty. To this proposition we cannot agree, for the reason that some of the other instructions relating to the question of self-defense are erroneous.

3. Appellant asked the court to instruct that if, after considering the whole evidence, the jury entertained a reasonable doubt as to whether or not the shooting was in self-defense, they should acquit him. This instruction was refused, and none was given covering the point save the general ones relating to reasonable doubt. The law seems to be well settled that the burden is upon the state to show that the defendant was not acting in self-defense, and this it must do by evidence sufficiently strong to remove all reasonable doubt. State v. Morphy, 33 Iowa, 270;State v. Porter, 34 Iowa, 131;State v. Fowler, 52 Iowa, 103, 2 N. W. 983;State v. Cross, 68 Iowa, 180, 26 N. W. 62;State v. Dillon, 74 Iowa, 653, 38 N. W. 525;State v. Donahoe, 78 Iowa, 486, 43 N. W. 297; No instruction to this effect was given. Such omission, in view of the instruction asked, was prejudicial error. Contention is made that, as no evidence was adduced by the state tending to show that the act was in self-defense, the burden was upon the defendant to establish...