165 Iowa 237 | Iowa | 1914
On April 21, 1913, the case was assigned for trial and set for May 7, 1913. The motion was not made until the day set for trial. The indictment was returned September 19, 1912. It is shown that the defense knew some time before the trial that Gulic was going to leave the state. There was no showing of any attempt to reach the witness, either by mail, telegraph, or by service of subpoena. There is no showing of any effort to locate the witness in Pennsylvania, nor is it shown that his whereabouts in Pennsylvania is known, or any probability that the testimony could be procured if the case had been continued. Under the circumstances, there was no abuse of discretion in overruling the motion.
The court must determine whether there is any substantial evidence of such lower degrees, and, if there is none, it is not error to fail to instruct as to them. It is undoubtedly true that in many cases where a person is charged with assault with intent to inflict great bodily injury, or a higher assault, the lower degrees of assault and battery and simple assault would be included. But this depends upon the character of the assault, the weapon used, the character of the injury, and the intent.
Because of the verdict, it is not necessary to discuss the higher degrees than that for which the conviction was had. A great bodily injury is an injury to the person of a more grave and serious character than an ordinary battery, but it cannot be definitely defined. State v. Gillett, 56 Iowa, 459.
The shooting occurred about June 22, 1912. Andrew Zeber, who is also referred to in the record as Zever, the prosecuting witness, had been expelled or suspended from some lodge or society a week or two before this shooting, for nonpayment of dues. As to the transaction in question, he testified that on the night of the shooting he went home to his boarding house, through the room where the shooting afterwards took place, and went on upstairs to his own room. Later he went downstairs and inquired of Green, the pro
He says, ‘I heard you wanted to fight me.’ I say, ‘No, no, John; I never fight nobody; I don’t want to fight.’ I say, ‘No, no, John; I know you, John.’ He told me — he says, ‘All right, I will give you this time,’ and he took a pistol from his pocket, quick, straight at my head. When he took the pistol out of his pocket, he was on one side of the table and I on the other; ordinary dining room table, I was talking with him, facing him. When I saw the pistol I put my hand up like that (indicating). I was seared of that pistol. The bullet came just through my arm and struck me here; struck me on the cheek. It was a 32 pistol. The bullet went through my arm and broke the bones. After I was shot John kept his revolver in his hands and went outside.
On cross-examination, he further testified:
I am sure he said, ‘All right, I will give you this time.’ He took a pistol from his right hip pocket; he had the trigger and shot me right straight to my head. He was pretty close. He measured until he got in line with my face, and then I put my hand like that (indicating). I was scared of the pistol. He measured straight to my head and then shot.
Zeber was a foreigner, and did not, perhaps, express himself as we would, but we take this last evidence of his to mean that defendant aimed the pistol directly at his head. Another witness gives the distance between them as six feet. Another witness for the state corroborates this witness in these matters. It is clear that Zeber put his arm up before his face when he saw the pistol, just before the shot- This is shown by Zeber’s evidence and by the medical evidence. The physician who dressed the wound testifies that Zeber was
The wound began on the outer surface of the forearm, coming out on the inside; there was a compound commuted fracture, which means that the bone was shattered in small pieces. This long scar was necessary because it was necessary to open it up to go in and get the small particles of bone. I took from the arm small particles of bone. It appeared to be a bullet wound. I dressed and looked after the arm for a period of ten or fifteen weeks — maybe longer. My attention was called to a wound on the face. I think on the left cheek —what we call an abrasion' — simply a loss of skin tissue; it wasn’t a deep wound; it was in a streak like.
Defendant testified in regard to the transaction:
I went to Green’s house that night about 9 o’clock. I remember when Mr. Zeber came in. It was about eleven o’clock. I had some money of the society that day, about $60. I had a revolver on my person that night. I had the revolver because I had this money on my person. When Zeber came downstairs, Mike Schleresco says, ‘Andrew, do you see that man, John Ockij, who put you out of the lodge?’ He said, ‘What do you think? That-throwed me out!’ I asked him, ‘Andy, I never throwed you out of the lodge; the president, he put you out.’ Zeber appeared to be angry. He called right away to me, ‘What for did I throw him out of the lodge?’ I say, ‘I can’t do that; the lodge president stands for that, not me.’ I tell Andy Zeber that way. He says, ‘You, damn.’ He took his left hand and got his right hand in his pocket; stick his left hand to my eye. I was behind the table. I got no chance to get out. When I got up, Mr. Gaspar stand up and drop the bottle of beer, and says, ‘You better sit down, you damn son of a b-.’ I had trouble with Gaspar two weeks before that. When Gaspar said that, I grabbed my gun like that because I wanted to get out. I had heard about Zeber running after Jarnico before that with a gun. John B'aker told me. At the time he throwed his hand back to his pistol pocket I thought he was going to shoot me — to take my life. Q. Was it in that belief that you pulled your gun? A. I wanted to scare him and
On cross-examination, he testified:
I knew when I went into Green’s house that that was where Zeber boarded. I knew about 4 o’clock that afternoon that he was cursing me and mad at me. I got this lodge money the Sunday before. Q. You carried it around in your pocket ever since — from Sunday until Saturday night? A. No. I sent the money in the bank. I didn’t carry any money at Green’s house. I went to the bank with the money-about 4 o’clock. After I left the bank I was working a little bit and then went to supper. I forgot to leave the revolver. I live two blocks from Green’s house. I never saw Zeber when he came in the house or until he came downstairs. He came downstairs when he called me these names. Q. When he put his hand back there and put his fist, right then you thought about the revolver? A. Yes. Q. You didn’t forget it then? A. I like to see. He was standing about six feet from me when I shot. I did not see any other revolver than the one I shot with. He put his hand to his pocket. I want to scare. I wanted to go out. I didn’t want to- fight.
In rebuttal, Zeber denied fhat he put his hand back to his pocket or that he put up his fist at defendant; says that he did not have a revolver; that he never carried one; and denies that he called defendant the names as stated by defendant.
We have set out the evidence somewhat in detail. From it there is no theory upon which a conviction for assault and battery or simple assault could be sustained. The theory of the defense at this point is, as they state it, that an assault and battery is an unlawful wounding the person of another; hence, if defendant, in a reckless manner, flourished a revolver
This court has repeatedly held that it is not error to fail to instruct on a lower offense or degree of an offense which might be included in that charged, but of which there is no evidence. State v. Cody, 94 Iowa, 169; State v. Reasby, 100 Iowa, 231, and cases at page 238; State v. Dean, 148 Iowa, 566, and cases at page 576; State v. Luther, 150 Iowa, 158; State v. Brown, 152 Iowa, 427.
We shall refer to defendant’s cases. Counsel cite State v. Welsh, 73 Iowa, 106. In that case the indictment charged that defendant made an assault upon one Goetz and beat and bruised him. The court said the evidence was such as to show defendant guilty of assault and battery, and that the
III. It is argued by appellant that the prosecuting witness was struck by accident. This matter is suggested for the first time in the reply argument.
Defendant requested four instructions on the question of self-defense, but did not offer any on the theory of accident. Defendant filed his affidavit in support of the motion for a continuance, and in it stated that he expected to prove by G-ulic that he (defendant) was first assaulted by Zeber, and that he shot to scare. As a witness, he did not claim that he shot over Zeber’s head and that Zeber threw up his hand above his head and was, by reason of that, hit by the bullet, or that it was an accident. 1
We are not required to determine whether, under such circumstances, the court should have instructed as to the lower degrees because, as we have shown, there was no such evidence. It is true that defendant claimed he did not intend by what he did do to shoot Zeber, but he does not deny that he deliberately took aim at Zeber’s head and fired. His claim, or one' of his claims, is that in doing that he did not intend to shoot Zeber, but only to scare him and the others. He also claims that Zeber put his hand to his hip pocket, and that he (defendant) thought Zeber was going to take defendant’s life. As to this, it would be inconsistent to say that defendant thought his life was in danger and that he fired his own pistol to prevent it, but that it was accidental.
(1) The defendant admits in his evidence that he discharged the revolver that resulted in the wound upon the
We quote this one because it contains the clause in italics, which was not included in the instructions given by the court, at least not in the same connection, though we think it was properly covered in others which were given. As to that part of the italicized clause which read, that defendant “dis
The law warrants the presumption or inference that a person intends the results or consequences to follow an act, which he intentionally commits, which ordinarily do follow
There was no error, and the judgment is — Affirmed.