146 Iowa 285 | Iowa | 1910
Lead Opinion
The indictment charged the defendant with an assault on Louis Young with intent to commit murder. At the time of the alleged assault, Louis Young was a member of the police force of Webster City, and the defendant was a resident of said city. At about five o’clock in the morning the defendant left his residence for the purpose, as he says, of taking an early train out of the city. He was going in the direction of the depot, accompanied by another man, when they met Young and a deputy sheriff of the county, Homer Howard, at a street intersection in the business part of the city. Young was then on duty, as we understand the record. The fight between Young and the defendant commenced at that place, and in the following manner, according to Young’s testimony.
Young testified for the State:
Homer Howard testified for the .State as follows:
Butler and Wedding came right up and stopped. Butler walked up just a couple of feet from Young. He stepped back. He said, ‘I have something to say .to you, Young.’ Young said, ‘What is it?’ Butler said, ‘What have you been talking about me and my place?’ Young told him he had better go home. Young asked him what he had in his hand. . I think perhaps Young told me to grab his hand, and Butler turned and said: ‘Howard, you leave me alone. Don’t you touch me.’ Young said: ‘He has got a knife. If you don’t put the knife up, I will hit you.’ Butler said he was not afraid of him or his club either. Young said he wasn’t afraid of him. Butler told him to leave him alone and there would be no trouble. Then Young struck his first blow and hit Butler on the arm, and after that he struck him two or three times on the head or neck. -He went down on his knees once or twice.
The defendant’s version of the transaction is as follows :
They were standing on the crossing when I came up. Mr. Howard spoke to me, and I spoke to him. I said: ‘Mr. Young, I have something to say to you. I would like to know what you have been saying about my place.’ He said, ‘I will throw you in,’ and started after me with his club. I stepped back and said, ‘Keep your hands off of me and there will be no trouble.’ He kept coming with his club and struck me. I threw up my arm, and he struck my arm and paralyzed it. Then he called to Mr. Howard to take hold of me.
The legality of the grand jury returning the indictment is assailed. It being claimed that two members thereof were recalled and impaneled after they had been discharged for that particular term of court. It is not shown, however, that they were discharged for the term, and we think the complaint without merit.
On the entire showing made, there was no error in denying the defendant a change of place of trial.
For the errors pointed out, the judgment will be reversed, and the case remanded. — Reversed and remanded.
Dissenting Opinion
(Dissenting.) As to the last ground of reversal, the trial court, by instruction No. 2, instructed that the burden was on the State to prove beyond a reasonable doubt “that the said assault was not made in self-defense of the person of the said defendant.” This was sufficient on that question. ■
As to the other ground of reversal, the trial court had made a series of rulings adverse to defendant based on the ground that no ground of impeachment had been laid in the cross-examination of Young. The rulings were ■right in this respect, and no intimation was given to the court on the ground of the offer which is now urged. I think the ground of the offer now urged should have been stated to the court at that time.