State v. Shunka

• Decision Date: 09 April 1902
• Citation: 89 N.W. 977,116 Iowa 206
• Parties: STATE v. SHUNKA.
• Court: Iowa Supreme Court

116 Iowa 206

89 N.W. 977

STATE

v.SHUNKA.

Supreme Court of Iowa.

April 9, 1902.

Appeal from district court, Benton county; G. W. Burnham, Judge.

Defendant was indicted for the crime of assault with intent to commit murder. He was duly tried, and from a judgment rendered on a verdict of guilty he appeals. Affirmed.Tom H. Milner, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

WATERMAN, J.

The material part of the indictment, the sufficiency of which is attacked, is as follows: “The said Joe Shunka on the 21st day of August, 1901, did then and there, with a certain revolver, the particular description of which is to this grand jury unknown, being a dangerous and deadly weapon, with which the said Joe Shunka was then and there armed, feloniously, willfully, and unlawfully, and with malice aforethought, make an assault in and upon, and did shoot at the body of, one Frank Seery, with a felonious intent then and there to kill and murder said Frank Seery. * * *” As we understand the position of appellant's counsel, it is not that the indictment is insufficient to charge a crime, but that it does not charge, in legal form, that the assault was made by shooting, because there is no allegation that the pistol was loaded with powder and ball. If any crime is charged, it is that of assault by discharging or shooting a pistol at the prosecuting witness, for that is what is alleged to have been done. Much of what was required in an indictment at common law is dispensed with under our statute. It is now only necessary to set out the offense “in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is meant.” Code, § 5280; State v. Caffrey, 94 Iowa, 65, 62 N. W. 664. Surely an assault made with a revolver by discharging it is sufficient as a description. Furthermore it is generally held that the crime of assault with intent to commit murder may be charged in general terms. Malice aforethought need not be averred in the indictment. It is said the ingredients of the offense, “whether of intent or act,” need not be set out. State v. Newberry, 26 Iowa, 467. At common law, or where the statute does not specify the instrument, it is not necessary, in an indictment for assault with intent, to state the instrument or means used to effectuate the purpose. 1 Whart. Cr. Law, § 644; State v. Gainus, 86 N. C. 632. In the following cases the allegation that the assault was by shooting with a pistol is held to be, by implication, a necessary averment that the weapon was loaded: Lacefield v. State, 34 Ark. 276, 36 Am. Rep. 8; Connors v. State, 45 N. J. Law, 211; Parker v. State, 95 Ga. 482, 22 S. E. 276;Bradberry v. State, 22 Tex. App. 273, 2 S. W. 592. Appellant relies upon some language used in State v. Shepard, 10 Iowa, 126. It is enough to say that it was used by way of argument only, in answering a...