4 Iowa 477 | Iowa | 1857
The questions raised by the demurrer, ate: 1. Whether it is sufficient to allege in the indictment, that the offence was committed “ on or about the (ffh day of June, 185.6.” We are of opinion that it is sufficient.. It is provided by the Code, (§ 2916,) that “ no indictment shall be quashed, or judgment thereon arrested or deemed invalid, if it can be understood that the offence was committed at some time prior to the finding of the indictment.” Wharton’s Crim. Law, 162.
2. It is alleged that the indictment is double, in charging the defendant with two offences punishable by statute in a different manner. The indictment charges that the defendant, (plaintiff in error), “ committed an assault and battery upon the person of C. C. How, with intent to inflict upon the person of said How, a great bodily injury.” The offence is charged in different forms, in four different counts of the indictment. This is allowable upon precedent and áuthoñty, and is authorized by section 2917 of the Code. A battery is only an aggravation of the assault, and when the assault is charged to have been made with a dangerous weapon, it is a still further aggravation; and where it is charged to have been made with an intention to commit great bodily injury, it is only an offence in a different degree. The assault is still the original offence, and the means — the intent— and the extent to which it is carried — qualify only the aggravation of this original offence, to which additional punishment is often affixed by the statute, which admits that the defendant may be convicted of the offence in a degree lower than that charged in the indictment. But it cannot be said that the indictment is double, because the assault is described with additional incident of aggravation.
3. It was shown by the testimony of How, the person assaulted, that he went with, and at the request of a constable, to the house of Cokely, the defendant, to levy an execution on his property; that they went to the stable, and
4. The subject was, however, continued;' and the witness How, was asked on his further cross-examination, whether. Hannah Cokely wife of defendant, did not request the constable and How, not to levy on the mules, as they were her husband’s only plow team, but to levy on other property. The question not being further objected to, the witness answered that Mrs. Cokely opposed the levy on the mules, but did not tell them that they might levy on other property, and made no request to that effect. The defendant, Cokely, then introduced his wife as a witness, and offered to' prove by her, that she had made such request to the constable and How, the witness, at the time thgy levied on the mules. The State objected to the testimony, and the evidence was held by- the .court to be inadmissible. There was no error in this ruling of the court. The question to How, on his cross-examination, was collateral and irrelevant to the issue. It might well have been objected to by the State, and
5. The defendant (Cokely) then offered to prove that he claimed to the constable and How, that the mules levied on were his plow team, and as such, exempt from execution, and that he requested them to levy on other property. This evidence, the defendant averred, was offered to show that the constable and How, were trespassers in levying upon property exempt from seizure. The evidence was objected to by the State, and ruled out by the court as irrelevant. The evidence was properly excluded. • If the property was exempt as claimed, that fact furnished no justification to defendant for his assault on How, the constable’s assistant. The legality of the levy was subject to be ascertained and determined by an appeal to the courts. The defendant had no right to take the law into his own hands, or to redress his own grievances by a resort to violence. The right to use force in defence of one’s person and property, does not authorize a defendant in execution to resist forcibly the officer in the discharge of his duty.
6. The defendant then proposed to show by Mrs. Cokely, his wife, that the witness How, while in the stable, used abusive language to, and struck defendant’s wife. The avowed purpose of the testimony was to impeach the credibility of How, and to justify the defendant in the use of sufficient force to prevent How from injuring his wife. The testimony was objected to by the State, and the court held that the witness might state whether How struck her, but should not state whether he had used abusive language to h,er. The ruling of the court was correct. The witness How-, was asked in his cross-examination by the defendant, whether he struck Mrs. Cokely, and used abusive language to her. So far as the matter of the abusive language is concerned, the defendant was bound by the answer of How, and could not contradict him. 1 Greenleaf’s Ev. §§ 449,
Judgment affirmed.