190 Iowa 800 | Iowa | 1921
We do not have occasion to discuss the evidence, except, perhaps, to observe that, in the encounter, Straub struck Thompson with a club, and Thompson struck Straub with an endgate rod of a wagon. Each man claims that the other was the aggressor. Straub claimed on the trial that his striking Thompson was in self-defense.
Error is assigned against certain instructions of the court to the jury.
“An assault is an attempt to apply unlawful physical force to the person of another, coupled with the apparent present ability to execute the attempt. ’ ’
In Instruction 7, the court says:
“In this case the defendant has admitted upon the witness stand that he did commit an assault upon the witness L. D. Thompson by striking him.”
In Instruction 10, the court defined assault and battery as follows:
“An assault and battery may be defined as the unpermitted and unlawful application of physical force to the person of another in a rude and insolent manner, or with a desire to do physical harm.”
He followed such definition by saying:
“In this case the admissions of the defendant upon the witness stand show that he did, in fact, commit an assault and battery upon the witness L. D. Thompson.”
It will be observed that the court defined an assault in Instruction 6, giving a correct definition, but followed such definition, in Instruction 7, with a statement to the jury that “defendant has admitted upon the witness stand that he did commit an assault upon the witness L. D. Thompson.”
Also, in Instruction 10, the court properly defined an assault and battery, but followed such definition with the statement that “admissions of the defendant upon the witness stand show that he did, in fact, commit an assault and battery upon the witness L. D. Thompson.”
The court defines an assault as being an unlawful act, and defines assault and battery as being an unlawful act, in both instances, and most properly; but tells the jury that the defendant has admitted that he committed an assault, thereby, in effect, telling the jury that the defendant, in the first instance, is guilty of the crime. The court afterwards properly and fully instructs the jury on the defense of self-defense. But we fear that such instructions do not cure the errors in the foregoing instructions. Undoubtedly, the court had in mind the correct theory of presenting these questions to the jury. But we think
Assignments of error are laid against other instructions, which we have carefully examined; but we find no error in them.
Defendant also claims that the verdict is not sustained by sufficient evidence. We have examined the evidence carefully, and conclude that the evidence was entirely sufficient to support the verdict. In fact, we regret to be obliged to disturb the verdict.
“Now, what do you say as to whether or not the wounds
The objection sustained was:
“That is objected to as not a proper subject of expert testimony, and calling for the opinion and conclusion of the witness on a matter that inheres in the verdict of the jury, and for it to determine. The witness, as a physician, cannot be called upon to tell whether an endgate rod can cause two wounds at one time, any more than a wagon maker or a lumberman. ’ ’
The question called for the opinion of the witness, not as to what might have caused the wound, but as to whether two wounds might have been caused by the same blow. The objection interposed was apt, and the ruling of the court correct.
Because of errors pointed out in the instructions, we are constrained to reverse this case and remand it for retrial.— Reversed and remanded.