155 Iowa 204 | Iowa | 1912
Lead Opinion
I saw the defendant, Butler, on the morning of August 1, 1908. I was standing on the crossing between the Buster Brown corner and' the savings bank. I was just approaching the crossing at the time I first saw Butler. I was approaching from the east, and was in the street, near the center of the street. Mr. Butler was down the street at about the Teed drug store, which is about one hundred and twenty-five feet east. It was about fifteen minutes to three. I was going over to meet the No. 1 passenger train, which arrives about three sixteen. It was about thirty minutes before that train was due that I first saw Butler. Homer Howard was with me. A fellow by the name of Chas. Wedding was with Butler. . . . When I first saw Butler and Wedding, Homer was with me. Mr. Butler was going west, walking very fast. Come up to where we were with Wedding, probably within two or three feet. I was in the middle of the street. Q. Now, when he came within three feet of you, as you say, what was his manner, what was his appearance? . . . He appeared to be very angry. . . . Howard was the first to speak. He said: ‘Hello, John. Where was the explosion?’ John said: ‘To hell with that explosion.’ He came up probably two or three feet of us. He said: ‘Young, I have something to say to you. What the hell have you been talking about my place?’ And I noticed he had something in his hand he tried to conceal under his coat. I did not know at the time just what it was, but I kept looking. I says: ‘You have better go home, Butler. Coming up here to make trouble. ... If you come up here making trouble, I will have to arrest you.’ He said no damned officer could make him go home; and Howard asked Butler
There is some little corroboration of this testimony in the cross-examination of the witness Howard, although this witness persisted in testifying as follows:
Q. State who struck the first blow? A. I think that Young did. I am sure that Young did. Butler said ‘What have you been talking about me and my place for?’ and Young said, ‘You go home and attend to your business.’ Butler said, ‘I won’t go home. I have a right here as well as you have.’ Young says, ‘What you got in that hand there ?’ Butler says, ‘None of your damned business.’ Young says, ‘You got a knife. Put that up, or I will hit you;’ and Young hit him. Q. Had Butler made any threats prior to that time? A. Never only what I have said. Q. Did he say anything about killing Young? A. Not at that time. I think that, after he knocked him down two or three times, he says, ‘I will kill you.’ Q. I understand you to say on direct testimony here that Butler said to Young, ‘What have you got in our hand?’ You did not mean that? A. I do not think I said it. I said that Young said, ‘What have you got in your hand?’ He says, ‘None of your damned business.’ And he says, ‘You got a knife;’ and Young says, ‘Take hold of that hand.’
The witness Howard also changed his testimony in some respects on this second trial. Manifestly there was enough in this testimony to take the ease to a jury upon the question as to whether or not defendant committed the first assault, and it was for the jury to weigh this testimony in the light of the statements made by the prosecuting witness on the former trial.
(4) An assault is an unlawful attempt or threat, by violence, to do injury to the person of another. To constitute an assault, it is not necessary that an actual injury be inflicted, but it is sufficient if there be an unlawful attempt or threat to do violence, coupled with the present means and intention of carrying the threat into effect or execution.
(14) It is claimed by the defendant that whatever was done by him at the time and place charged in the indictment was justifiable, and done on his part in self-defense, to repel an unlawful assault made by the said Young upon the defendant. The law recognizes the right of every person about to be injured to offer such resistance as to him, acting as a reasonably prudent person under the circumstances, appears to be necessary to prevent a threatened injury to his person. It is also true that the danger which will justify the resort to self-defense need not be real, but only as would lead a reasonably prudent man to believe in its reality; and in estimating the nature of the imminence of the danger and in the choice of means to avoid it, or the amount of force to be used in repelling it, the excitement and confusion of the surrounding circumstances must be considered, and a person is not held to that cool, deliberate judgment, in estimating the danger or choice of means unaffected by excitement or danger and subsequently contemplating the situation.
The defendant contended that Young committed the first assault by striking him with a billy, and that he, Young, was not attempting to arrest him for any offense or supposed offense. It was important to him that the instructions correctly defined an unlawful assault. There was testimony that defendant had previously made threats against Young, and that he reiterated them just prior to
Where the offense consists of an attempt to do injury, there must be, as in other cases of attempt, something more than a mere intention. Some stop must be taken toward carrying out the intent. Thus mere preparation is not enough, nor mere threats unaccompanied' with any offer of violence, nor the presentation of a dangerous weapon without manifestation of intention to use it, or accompanied with language indicating the intention not to use it. But pointing a loaded weapon, with words indicating the intention to discharge it, is enough without an attempt made to actually discharge it; the further prosecution of the attempt being prevented by interference. Mere words will not constitute an assault, but words may be important as giving color to acts, and may make that an assault which would not otherwise be one. The line of criminality is to be drawn between menace only and violence begun to be executed. There must be an act in pursuance of a wrongful intent, and such an act must involve, as is frequently said, the present ability on the part of the assailant to commit the threatened injury. Thus, to constitute an assault with a weapon, it is necessary that the weapon should be presented at the party assaulted within the distance at which it may do execution. But, if there is intent to injure and the means resorted to is believed to be adapted to the end, it seems to be immaterial whether such means could have produced the injury intended. The question whether there is ability on the party of the assailant to inflict the threatened injury, as, for instance, in case of a gun loaded with powder only, whether the assailant is near enough to the assailed so that the "discharge of the weapon thus loaded would inflict an injury, is for the jury; but it is not necessary that assailant, attempting to strike the assailed with a club or otherwise, be actually
As already indicated, the doctrine stated in the preceding section, in accordance with which actual threatened injury is essential to constitute an assault, is not universally recognized, and, indeed, the general proposition supported by the weight of authority is that, if assailant makes threats to injure, being in apparent position to carry them out, and does acts with the apparent intention of carrying them out, thus putting the assailed in fear, an assault is committed, even though by reason of facts not known to the person assailed it would be impossible for assailant to commit the injury threatened. Thus to point a gun or pistol at a person who does not know but that it is loaded, and has no reason to believe, that it is not, is an assault. It is therefore unnecessary in such cases that the indictment allege that the weapon was loaded or otherwise show present ability to inflict an injury; but on this point authorities to the contrary are cited in the preceding section. (1 McClain’s Crim. Law, section 233.)
Mr. Bishop, in his work on Criminal Law, says: “An assardt is any unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being; as raising a cane to strike him; pointing, in a threatening manner, a loaded gun at him, and the like.” 2 Bishop’s Grim. Law, section 23. “Words alone will not suffice for assault, ‘notwithstanding,’ says Hawkins, ‘the many ancient opinions to the contrary.’ There must be physical force. Even a threat is not an assault if unaccompanied by an attempt or offer.
VI. (There is much doubt in our minds as to whether the court should have submitted the case on the theory that the prosecuting witness was attempting to arrest defendant at the time the encounter took place. At any rate, there is no such showing in this regard as would make defendant’s resistance to Young’s effort to take him into custody an assault, such as arises where one offers resistance to a lawful arrest by an officer. Our discussion on the second branch of this opinion has no reference to such an assault, and should not be so considered. The trial court was not endeavoring to cover this phase of the case in the instructions there considered.
For the errors, pointed out, the judgment must be again reversed, and the cause remanded.
Dissenting Opinion
(dissenting). — I am quite 'convinced that there was no prejudicial error, if error at all, in instruction No. 4 given by the trial court.
There is scarcely a subject in the law more evasive of complete and accurate definition than “assault.” Practical recognition of it in a given case is often easier than a legal definition of it. I know no definition of assault that is concise on the one hand and all comprehensive on the other. It is often defined as an unlawful attempt to do immediate and intentional violence to the person of another, coupled with the apparent ability to do such violence. Such a definition will cover perhaps a large majority of actual cases, and yet it does not comprehend them all. A familiar illustration of an assault which is not covered by such definition is the pointing of an unloaded gun at another. State v. Shepard, 10 Iowa, 126. Such an act is deemed to be
The excerpt quoted in the majority opinion from McClain’s Criminal Law (volume 1, section 232) is an elaboration of the subject rather than a definition of the term; and I am in full accord with it. That discussion is by no means condemnatory of the instruction given by the trial court. The instructon as given was peculiarly applicable to the evidence, and should be considered, of course, in the light of the evidence. The evidence on behalf of the state was that Butler was coming down the sidewalk in the direction of Young, and was thus approaching him. When he had come within a few feet of him, he began an altercation, and manifested great anger. When within two or three feet of Young, he said: “I have come up to get you, and I am going to kill you.” He had in his hand at that very moment an open knife with which he inflicted a severe wound upon Young a few moments later. When Young heard the threat and saw the open knife, and perceived the anger and apparent intention of Butler, he told Howard to “catch his hand,” and he himself took “hold his hand.” This was done before the wound was actually inflicted by Butler. The question for the jury at this point was, Who was the aggressor? This was the occasion for a definition of assault appropriate to the evidence. If Butler was the aggressor, then Young was justified in trying to disarm him. If Butler was not the aggressor, then necessarily Young was.
Assuming the truth of the testimony of Young, and assuming, further, that Butler was then actually intending
II. Referring to the excessive sentence, the time served on the former sentence was twenty-one days. A reduction of the sentence t'o that extent can be ordered here as well as in the lower court.