State v. Jarvis

21 Iowa 44 | Iowa | 1866

Cole, J.

i. orisehtai. sutuíionaf law: juriadiction. By section 11 of article 1 of our Constitution, it is declared that all offenses less than felony, where the punishment does not exceed one hundred dollars fine or thirty days’ imprisonment, shall be tried summarily, before a justice of the peace or other officer, on information, and without indictment. In the case of The State of Iowa v. Shepherd, 10 Iowa, 126, it was held that this constitutional provision did not prevent the conviction and punishment of an accused for such offense less than felony, under indictment, in the District Court, where it was included in, or was only a less degree of the offense charged in the indictment.

This holding was clearly correct, and is affirmed.

It is provided by the Bevision, section 4835, that “ upon an indictment for ah offense consisting of different degrees, the jury may find the defendants not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.’

“Section 4836 (3039). In all other cases the defendant may be found guilty pf any offense, the commission of which is necessarily included in that with which he is charged in the indictment.”

The court below proceeded upon the ground that a simple assault, of which the defendants were found guilty, was an inferior degree of the defense charged — an assault with intent to commit murder; and that since a simple assault was not-punishable by indictment, there was no jurisdiction to enter judgment or pronounce sentence upon the defendants. In this view we think there was error. The offense of an assault with intent to murder does not admit of different degrees, since the intent is the gist of the offense. 1 Whart. Am. Crim. Law, § 1279. If the assault was with the intent to rob or maim, it would be a different offense from an assault with intent to murder, and not simply a degree of the same offense inferior thereto. 1 Bish. Crim. Law, §§ 528 to 542. But an assault with, intent to murder necessarily includes a simple assault. The District Court, therefore, possessed the jurisdiction and authority, and it was its duty to have entered judgment upon the verdict and pleas, and to have passed the sentence of the law upon the defendants. See § 4836, supra.

We áre also inclined to hold that the concluding words “if punishable by indictment,” of section 4835, supra, relate alone to the first preceding clause “ of an attempt to commit the offense,” and not to both the degree and the attempt.

Reversed.