State v. Wyatt

• Decision Date: 21 December 1888
• Citation: 41 N.W. 31,76 Iowa 328
• Parties: STATE v. WYATT.
• Court: Iowa Supreme Court

76 Iowa 328

41 N.W. 31

STATE

v.WYATT.

Supreme Court of Iowa.

Dec. 21, 1888.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

An information was filed against defendant Nym Wyatt before a justice of the peace, which, the justice held, charged the crime of assault and battery. Defendant was convicted of assault and battery, and from the judgment pronounced against him he appealed to the district court. On a trial in that court he was found guilty of an assault, and sentenced to pay a fine, and from that judgment he appealed to this court.W. S. Sickmon, for appellant.

A. J. Baker, Atty. Gen., for appellee.

REED, J., ( after stating the facts as above.)

1. The following is a copy of the information on which defendant was tried: “State of Iowa v. Nym Wyatt. The defendant is accused of the crime of an assault with intent to inflict great bodily injury. For that the defendant, on the 10th of October, 1886, at the township of Bloomfield, in the county of Polk, and state of Iowa, unlawfully and willfully did strike at and choke one Charles Wagner, with intent to do him, the said Wagner, a bodily harm and injury, contrary to the statutes,” etc. In the district court the defendant demurred to the information, on the ground that it charged an indictable offense, to-wit, the crime of assault with intent to inflict a great bodily injury, and consequentlyneither the justice nor the district court had jurisdiction to try him thereon. He also moved an arrest of judgment on the same ground. The offense charged is determined by the statement of facts in the indictment or information, and not by the designation given in the caption. State v. Davis, 41 Iowa, 311. It is clear that the present information, in its statement of facts, charges an assault and battery.

2. The district court instructed the jury that defendant might be convicted under the information of either an assault or assault and battery. Exception was taken to the definition of an assault given by the court, which is as follows: “An attempt or offer, by force and violence, to do a corporal injury to another is an assault.” That all the elements included in this definition might be present in a transaction, and the act not amount to a criminal assault, is certainly true. For an attempt to do an injury to the person of another by violence, may, under some circumstances, be lawful, as when the person acted in self-defense. The evidence, however, is not before us, and we cannot...