41 Iowa 316 | Iowa | 1875
The appellant was indicted for the crime of an assault with intent to commit murder. He pleaded not guilty, and upon the trial the court charged the jury in sub-* stance that, if they believed the defendant committed an assault, but did not commit the same with the intent to murder, they could still, under this indictment, find the defendant guilty of an assault with intent to commit manslaughter or great bodily harm. The jury returned a verdict of guilty of an assault with intent to commit manslaughter, upon which the court rendered judgment of imprisonment in the penitentiary.
The question presented on the appeal is, whether, under this indictment, the accused can be lawfully convicted of an assault with intent to commit the crime of manslaughter. At the common law no such crime was known, nor does our statute create or prescribe a punishment for any such specific crime. The provisions of the statute in relation to aggravated assaults are as follows:
. “Section 3872. If any person assault another with intent to commit murder, he shall be punished by imprisonment in the penitentiary not exceeding ten years.”
*318 “Sec. 3874. If any person assault another with intent to maim, rob, steal, or commit arson or burglary, he shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine' not exceeding one thousand dollai's, or by both fine and imprisonment at the discretion of the Court.”
“Sec. 3875. If any person assault another with intent to inflict a great bodily injury, he shall be punished by imprison'ment in the County Jail hot exceeding one year, or by fine not exceeding five hundred dollars.
“Sec. 3876. If any person assault another with intent to commit any felony or crime punishable by imprisonment in the penitentiary, where punishment is not otherwise prescribed, he shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding five hundred dollars, and imprisonment in the county jail not more than one year.”
The statute on “criminal procedure ” provides as follows:
“Seo. 4465. Upon'an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the offense charged in the indictment and guilty of any degree inferior thereto, or of an attempt to commit the offense, if punishable by indictment.”
“ Sec. 4466. In all other cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment.”
It cannot be claimed that the verdict and judgment in this case are warranted under section 3876, above set out, without the aid of either section 4465 or 4466, for while it may be admitted that said section 3876 does provide for the indictment and punishment of felonious assaults not mentioned in either of the three preceding sections, it will not be pretended that this can be done without charging, in the indictment, the specific felony intended to have been committed. In all cases the facts constituting the specific crime intended to be charged must be stated in the indictment (Code, Sec. 4296), and the indictment must be direct and certain as to the “offense charged,” and as to the “particular circumstances of the offense charged, when they are necessary to constitute a complete
On the other hand we find a case expressly holding that the defendant cannot be convicted of an assault with intent to commit manslaughter, under an indictment for an intent to commit murder. In Morman v. The State, 24 Miss., 54, the defendant was indicted for an assault with intent to commit murder, and was convicted of an assault with intent to commit manslaughter, and it was held that the conviction was erroneous; that the crime of which the defendant was convicted was another and distinct offense from the one charged. The court says: “It has been uniformly holden that where the evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved; and the intent with which the act was done, must be proved to be the same with that charged.” See cases cited in the opinion.
Reversed.