State v. Clark

45 N.W. 910, 80 Iowa 517, 1890 Iowa Sup. LEXIS 268

Opinions

Given, J.

— I. The errors assigned involve the single inquiry whether the indictment charges the assault to have been made with intent to inflict great bodily injury. The indictment must be direct and certain as regards the offense charged. Code, sec. 4298 (McClain’s Ann. Code, sec. 5683.) An indictment cannot be aided by intendment, or an omission supplied by construction. The acts necessary to constitute the offense must be, in the manner indicated, set out and averred. State v. Potter, 28 Iowa, 554. The intent charged is to “ strike •and bruise,” an intent which may exist in a case of simple assault or assault and battery. No intent to inflict-great bodily injury is charged, exceptas it may be inferred from the allegation that he did inflict great bodily injury, but the intention cannot be determined by such inference. Every charge in this indictment may be true, and yet the defendant not be guilty of an assault with intent to inflict great bodily injury. He may have committed a battery by striking and bruising, to such an extent as to inflict a great bodily, injury, but it does not follow that he is charged with making the assault with intent to inflict such an injury ; the injury may have been greater than was intended. . We do not think that this indictment charges the offense of an assault with intent to inflict great bodily injury with ■such a degree of certainty and in such a manner as to •enable a person of common understanding to know that such charge is intended, and the court to pronounce judgment upon the conviction according to the law of the ease. Our conclusion is that the district court erred in not sustaining defendant’s demurrer to the indictment, •and the judgment of the district court is, therefore,

Reversed.