The State v. Montgomery

• Decision Date: 17 March 1885
• Parties: THE STATE v. MONTGOMERY
• Court: Iowa Supreme Court

22 N.W. 639

65 Iowa 483

THE STATE v. MONTGOMERY

Supreme Court of Iowa, Council Bluffs

March 17, 1885

Appeal from Marion District Court.

UPON an information filed before a justice of the peace, defendant was convicted of an assault and battery. He appealed to the district court, and was again convicted, and now appeals to this court.

AFFIRMED.

C. H Robinson and Ayres Bros., for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

BECK, CH. J.

We shall proceed to dispose of the objections urged by defendant to the judgment of the court below in the order of their discussion by counsel.

I. An attorney who had presented the case before the justice of the peace was, upon the request and consent of the district attorney, permitted to assist in the prosecution in the district court. This was made the ground of an exception in the court below, and the objection is renewed in this court. We have held that, with the consent of the district attorney the district court may permit attorneys employed by private parties to assist in prosecutions. State v. Fitzgerald, 49 Iowa 260. This decision is questioned by defendant's counsel, for the reason that they think it is not well considered, and the decisions of other states are not referred to in the opinion. It will be observed that the decision is based upon the long existence in the state of the practice to which counsel object,--a consideration of more weight than decisions of other courts. The personal observation of some of us warrants the statement that the practice has prevailed in this state for more than forty years, and none of us have, until recently, heard it questioned. A practice so long and firmly established can only be abrogated by legislative enactment. But counsel for defendant think that this case should not be regarded as within the rule of State v. Fitzgerald, for the reason that the assisting counsel was employed by the prosecuting witness. Under the long-prevailing practice, the prosecuting witness has always been permitted to employ an attorney to assist the officers in charge of the prosecution. Counsel for defendant think that, as the prosecuting witness may be held liable for costs, he is interested in the result of the prosecution, and therefore ought not to be permitted to employ counsel in the case. This consideration, we think, gives strong support to the justice and correctness of the practice. Surely the prosecuting witness, being liable for costs if the prosecution fails, ought to have the right to employ counsel for his own protection.

II. The assault of which defendant was charged consisted in pointing in a threatening manner at the prosecuting witness a cocked revolver. The evidence tends to prove that the prosecuting witness was forbidden by defendant to travel upon a certain road through a farm owned or controlled by defendant, and was compelled by the display of the revolver to leave the premises. In accomplishing his purpose of preventing the prosecuting witness from passing over the farm, defendant pointed the revolver more than once at the witness. Counsel now claims that the evidence shows more than one offense, and was therefore erroneously admitted, so far as it tended to prove more than one act. But all the evidence, in fact, pertains to but one transaction,--two continuous acts done for the purpose of driving the witness away from the premises. The separate acts of pointing the weapon constituted but one assault. While one act alone constituted an offense, all were properly shown, to establish the animus of the defendant. This view disposes of several objections made to the admission of evidence and instructions given.

III. Upon the cross-examination of the prosecuting witness he stated, in response to a question by defendant, that there had been a difficulty between them. This evidence was competent to show the feeling of the witness towards the defendant...