70 Iowa 217 | Iowa | 1886
I. The charging part of the indictment was in these words: “The said Frank MeCunniff and James
It will be observed that the indictment charges an assault upon George J. Farley with an intent to kill and murder him, and shooting him in the back and body. These are the facts charged as constituting the assault for which the defendants were put upon trial and convicted. It is true that the indictment also charges that the assault and shooting was done with intent to murder said Frank I. Farley. The evidence shows that the defendants were engaged in a fight with George J. Farley in a saloon in Hazelton. It was a violent disturbance, in which chairs and other weapons were freely used by the parties. There were quite a number of persons in the saloon, and in the course of the engagement Frank McOunniff shot Farley in the back or shoulder with a revolver. There is no dispute that Farley was shot and wounded quite seriously, and that Frank McOunniff was the party who inflicted the wound; and there is no evidence that any other man named Farley was in or about the saloon at the time of the fight. The name of Frank I. Farley was evidently inserted in the closing part of the indictment by mistake. All of the evidence tends to show this to be the fact, and neither court nor jury would have been warranted in reaching any other conclusion.
The court instructed the jury to the effect that if it was apparent that the writing of the name of Frank I. Farley was a clerical error in drafting the indictment, and that it
It seems to us that counsel for defendant place too much stress upon the final averment of the indictment. It is distinctly charged that the assault was made with intent to murder George Farley, and the use of the word “said,” before naming Frank Farley, shows quite clearly that the pleader did not write the name he intended to insert. It is provided by section 4302 of the Code that “when an offense involves the commission or an attempt to commit an injury to the person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the name of the person injured, or attempted to be injured, is not material.” And courts are required to disregard defects or imperfections in indictments which do not tend to the prejudice of the substantial rights of the defendant upon the merits.
It was proper for the court to direct the jury to determine, from the evidence, whether the last recital of the name of the person injured, or attempted to be injured, was an error, and whether the defendant was in any way prejudiced by the mistake. All of the evidence showed that it was a mistake,
II. Objection is made to the testimony of certain witnesses to the effect that the defendants were in the posses-
AeEIRMED.