| Iowa | Apr 9, 1859
I. The first and second errors assigned are, that the instructions of the court are inapplicable to the issue generally; and specifically, that while they relate to a trial for assault and battery, the indictment charges an unlawful assembly and riot. In the defendant’s demurrer, they had urged that the indictment united two offenses; or, that it was a charge of riot, or for assembling to do an unlawful act, or a lawful act in an unlawful, violent or tumultuous manner, under the Code, (sections 2739, 2740, or 2797); and objected to its sufficiency as a charge for either of those offenses. The same objection is now made in another form.
It is unnecessary to elaborate upon this objection. Although the indictment charges the act as being done riotously, routously, and in a violent and tumultuous manner,
II. The third assignment of error, is to the admission of one ITaynes as a witness on the part of the state, his name not being indorsed on the indictment. This ease was pending before the Act of 22d of March, 1858, (Acts of 1858, 211), and it has been held by this court, that this is not a valid objection to the admission of a witness. The cases of Ray v. The State, 1 G. Greene, 316, and Harriman v. The State, 2 G. Greene, 272, were decided under different provisions of law in reference to indictments, and are not considered as governing those of the Code. The State v. Abrahams, 6 Iowa, 117" court="Iowa" date_filed="1858-06-10" href="https://app.midpage.ai/document/state-v-abrahams-7091396?utm_source=webapp" opinion_id="7091396">6 Iowa, 117.
III. The fifth assignment is to the giving the first, third, and fourth instructions asked by the prosecutor. The first was, that if the defendants, Eobert McClintock and Cohee, struck Haynes, they were guilty of assault and battery, unless they struck in self-defense. So far as this carries the idea that a separate assault Tipon one of the persons, will justify a conviction, it is erroneous. This subject is embraced in a subsequent instruction, and will be referred to again.
The third instruction was, that if the defendants assaulted and struck only one of the persons named, that is Haynes or Lloyd, they are guilty. And the fourth was, that if Cohee was present, “ aiding and abetting ” the other defendants, who actually did commit the assault upon one of the persons named, he is guilty with the others, although he did not actually strike, himself. It is a familiar rule in regard to trespass, that all who instigate and promote the act, are equally trespassers with those who do it, and are guilty ; and, therefore, the fourth instruction is not
IY. The fifth error assigned, is upon the refusal to give certain instructions requested by the defendants. The first is to the effect, that they could not be convicted, unless the jury found that the assault and battery was committed upon both Lloyd and Iiaynes, as charged in the indictment. This was refused; and the converse of the proposition was given, at the request of the prosecutor. In this, we think, the court erred. The instruction should have been given in substance, as asked by the defendants. In a subsequent indictment for an assault and battery upon one of the persons named, the defendants would not be able to give in evidence, under a plea of former conviction or acquittal, the judgment under this indictment.
The defendants further requested the court to instuct the jury: Third. That “under this indictment, neither of the defendants can be convicted for an individual and separate assault and battery upon Lloyd alone, or Haynes alone, at different times.” And also, Fifth. “ That neither of the defendants can be convicted for' an assault and battery under this indictment, if the proof goes no farther than to show a separate assault by Mitchell McClintock upon Haynes, and another upon Lloyd, and a separate assault by Robert McClintock on Haynes.” And, Sixth. “That the defendants cannot be convicted under this indictment, for an assault upon Haynes alone, or Lloyd alone.”
These instructions were refused by the court. So far as the court held, that either of the defendants might be convicted for his own separate assault on the persons named, they were right; for it is a general rule, that when two are supposed to be jointly guilty of an offense, they may be indicted jointly or severally, and in either case, one maybe found guilty. 1 ’Whart. Or. Law, 693 ; Caldwell v. Commonwealth, 7 Dana, 229" court="Ky. Ct. App." date_filed="1838-10-19" href="https://app.midpage.ai/document/caldwell--christian-v-commonwealth-7380607?utm_source=webapp" opinion_id="7380607">7 Dana, 229 ; Calico v. The State, 4 Pike, 430. But so far as the court held that an assault on one of the persons named, was sufficient to convict; and refused to
It is clearly established, and daily practiced, that one may be convicted, though several are charged. Even -when all are convicted, the punishment is several, and this must, from the nature of the case, be so. It is so when the punishment is a fine only. See the eases cited above. On the other hand, if the proof of an assault upon one of the persons named, would justify a verdict of guilty, it would seem to follow that a judgment of conviction or acquittal, under a charge for the one offense, might be pleaded under a charge for the the other, because the two offenses would not be distinguishable, evidence of the one being given un. der a charge of the other.
One or two other points were made, which it will be unnecessary to consider, since, for the foregoing errors, the judgment must be reversed.