It is without dispute that the defendants, on one side, and the deceased, with one Walter Myuscovich, on the other, became engaged in a fight on the street in Mason City, and that during the encounter Georgeovich was shot and killed. ' Five bullet wounds were found in his body. Of these, two were not fatal; two would not necessarily have been immediately fatal; and one would have caused immediate death. The order in which the wounds were received is not clear. There was evidence tending to show that both the defendants shot at Georgeovich both before and after he was down. After the conflict, he was found to be dead; but at just what instant death occurred, whether before or after all of the wounds were inflicted, is not shown.
There was a sharp dispute in the evidence as to how the conflict started, as to who were the aggressors, and as to whether the deceased and Myuscovich were armed. No claim is made that the evidence was not sufficient to sustain the verdicts. The errors assigned' relate to the rulings on the admission of evidence and the instructions given by the court to the jury.
The. jury was instructed that the defendants might be found guilty of murder in either the first or second degree, manslaughter, assault with intent to commit murder, or assault with intent to commit manslaughter. No lower offenses were submitted, and this is assigned as error. Without entering upon any detailed recital of the evidence, it will be sufficient, for the present purpose, to say that it was neither conceded nor conclusively shown that the wound or wounds causing the death of Georgeovich were inflicted by either of the defendants. While there was testimony from which it might well have been found that such was the fact, there is also testimony tending to show that, at the time deceased fell, he was between the defendants and Myuscovich, and the latter was shooting toward the defendants. The
The question is not as to the necessity of submitting offenses lower than manslaughter; it is narrower than that. .Where the court, upon the trial of an indictment for murder, properly submitted assault with intent to commit murder and assault with intent to commit manslaughter, and the defendants were convicted of the latter crime, was it error not to submit the still lower offenses! If the defendants were guilty of an assault, the character of the assault would depend upon the intent with which it was committed. The intent of the perpetrators was a question for the jury. By what criterion could the' court de
Where the circumstances are such, as in the instant case, that, upon an indictment for murder, it may be found that death did not result from the assault, and it is therefore proper to submit the lower offenses of felonious assault, it would seem clear that it is the province of the jury, and not the court, to determine the specific intent with which the assault was committed. It was error not to submit the offense of assault with intent to inflict a great bodily injury. Whether the still lower offenses of assault and battery and simple assault should also have been submitted, it is not necessary to determine. Upon a retrial, that question must be determined by the court upon the .evidence then produced. State v. Ockij, supra.
Complaint is made of an instruction' to the effect that all persons concerned in the commission of a public offense, whether directly committing the offense or aiding and abetting in its commission, are equally guilty; and that, if it foe found that one of the defendants aided and abetted the other in committing any of the offenses charged in the indictment, then the one so aiding and abetting the other would be equally guilty with the defendant who directly committed the crime. The instruction does not embody a correct statement of the law. 'The statute, Code Section 5299, abrogating the distinction between an
Error is assigned on the giving of an instruction on the subject of self-defense. The particular portion of the instruction assailed is to the effect that, when it is evident to a person assaulted that the danger which appears imminentean be avoided m any other way, as by retreating from the conflict, the taking of the life of the assailant cannot be justified on the ground of self-defense. This is in accord with the holdings of this court. State v. Jones, 89 Iowa 182, 183; State v. Warner, 100 Iowa 260. Nor does the fact that the encounter took place upon a public street alter the rule. State v. Jackson, 156 Iowa 588; State v. Dyer, 147 Iowa 217.
Myuseovich was not called as a witness by the State in making out its case in chief, and his name was not indorsed on the indictment. He was called in rebuttal, and his testimony was, considerable strictness, limited by the court to denials of statements and occurrences testitied †0 by witnesses for the defendants. The testimony was properly admitted. State v. Maher, 74 Iowa 77, 79; State v. Munchrath, supra.
Defendants, for the purpose of impeachment, introduced witnesses who testified that the general reputation of the State’s witness Myuseovich as. to general moral character was bad. On cross-examination, one of these witnesses was . permitted, over objection, to say that Myuscox 7 vich’s general reputation as to truth and veracity was good. General moral character, as the term implies, includes all the qualities that go to make up moral character. Among these is truthfulness. The statute, Code Section 4614, permits proof of the general moral character of a witness for the purpose of testing his credibility. If one who testifies that the general reputation of a witness for general moral character is bad, bases his answer upon a knowledge of the reputation of the witness as to some other trait than truthfulness, we think this may be brought out on cross-examination.
Other errors assigned and argued are without merit.
For the reasons pointed out, the cases are — Reversed and remanded.