67 Iowa 289 | Iowa | 1885
The jury were warranted from the evidence in finding that several persons had assembled at a schoolhouse for a lawful purpose, aud that Eller, the person alleged to have been assaulted, was seated, quietly conversing with others, when he was approached by the defendant, who asked Eller if he had testified that he would not believe the defendant under oath. Upon Eller’s replying that he had, the defendant struck him with a piece of wood, which was about three feet long, three inches wide and one inch thick. The jury were warranted in finding that the assault was premediated, because of the defendant’s having whittled the stick down at one end so as to give him a good hand-hold, and from a remark made while preparing the stick, immediately prior to the assault. The jury were also warranted in finding that in giving the blow the defendant used both hands. They were
It is urged that the verdict is not sustained by the evidence, but we are satisfied that the defendant made a wicked assault on Eller with the stick; that he did so premeditatedly, and that he on more than one occasion drew his revolver and threatened to shoot Eller. The only possible doubt there can be is as to the intent with which the assault was made. Upon a careful consideration of the evidence we do not think we should interfere with the finding of the jury in this respect. The weapons used, the premeditation, and all the circumstances attending the assault, lead us to the conclusion that the assault was made with a deadly purpose. It clearly was made recklessly and* with a total disregard of consequences. It was unprovoked and wicked. The revolvers were, of course, deadly weapons; but it is said the stick was not; but we cannot so say as a matter of law. This, we think, was a question for the jury. An instrument may •br may not be a deadly weapon, depending on the manner in which it is used. It is probable that a riding-whip should not be so regarded. A base-ball bat, if viciously used, probably should be. We think death might be caused by the use of the stick with which the assault was made in this instance. The jury might well so conclude from all the circumstances in the case. We cannot interfere with the verdict. The instructions are criticised mainly on the ground that they are not sufficiently certain and definite as to whether the stick should or could be regarded as a deadly weapon. We have each of us separately read the instructions, and have separately reached the conclusion that they are not erroneous
Affirmed.