The State v. Bateman. objection and the defendant excepted. The district attorney then made a detailed statement of what he expected to prove, and closed by saying that if he proved these facts he had "no fears at all as to what twelve responsible, substantial men of Tama county will do in the end." At the conclusion of this statement the court offered to let the defendant's counsel make a statement to the jury, but counsel declined to make any statement at that time, stating to the court at the same time that they would reserve the privilege of making a statement of their case until after the testimony in chief for the State should be introduced. At the close of the testimony for the State, and before any evidence was offered by the defendant, the defendant's counsel offered to make a statement of their case to the jury. To this the prosecution objected. the court sustained the objection and the defendant excepted. criminal law: statement to jury. I. The defendant insists that the trial must proceed in the order prescribed in section 4420 of the Code, and that the dis1. PRACTICE: trict attorney had no right to make any statement opening of the case, other than to read the indictment and state the defendant's plea. Chapter 19, Laws of the Seventeenth General Assembly, provides that after the reading of the indictment the district attorney may briefly state the evidence by which be expects to sustain the indictment, and the attorney for the defendant may then briefly state his defense, and the evidence by which he expects to sustain it. This case, however, is not governed by the provisions of this chapter, having been tried before it went into operation. We are of opinion, however, that before the enactment of this statute it was competent for the court, in its discretion, to allow the district attorney to make a statement, and that the only effect of this statute is to secure, as a matter of right, what the court before might, in its discretion, grant or refuse. II. It is claimed further, however, that the court, having permitted the district attorney to make a statement, should have allowed the defendant to make a statement. The court did, at the conclusion of the statement of the district attorney, offer to let the attorneys of the defendant make a statement. They declined to do this at that time, 2. .: The State v. Bateman. but informed the court that they would reserve the privilege of making a statement of their case until after the testimony in chief for the State should be introduced. If they had been informed that they must make the statement then or waive the right to make any statement, there would have been no error in refusing to permit them to make a statement after the testimony for the State had closed. But the passing of their suggestion in silence by the court, and by the district attorney, may have induced them to believe that no objection would be made to their statement, on account of the time at which it was proposed to offer it, and to waive the making of the statement before the introduction of any testimony. It must have been apparent, both to the court and to the district attorney, that the attorneys for the defendant waived the making of a statement before the introduction of any testimony in the belief that they would be permitted to make a statement at the close of the testimony for the State. As there was no rule or statute upon the subject at the time this cause was tried, and the court had, in its discretion, permitted the district attorney to make a statement before proceeding to the introduction of the testimony on the part of the State, the same privilege should have been extended to the defendant. The court might, without error, have refused to allow either the State or the defendant to make a statement. But the court could not legally grant the privilege to the State and refuse it to the defendant. It may be said that it is not shown that the defendant sustained any prejudice by the refusal. But the district attorney regarded the privilege of making the statement of such importance as to insist upon making it, notwithstanding the defendant's objection. If the privilege was important for the State, it was equally important for the defendant. REVERSED. ROTHROCK, J., dissenting.-I cannot concur in the conclusion reached in the foregoing opinion, nor in the reasoning upon which it is based. The opinion concedes that it would have been proper for the defendant to have made his statement The State v. Bateman. immediately after that made by the district attorney. The court then at the proper time offered to allow the defendant the privilege of making his statement. This was equivalent to saying to the counsel for the defendant that then was the time to make his statement. When counsel for the defendant declined, and stated that he would reserve his privilege until a later period in the trial, the court was not bound then to determine whether the statement could properly be made at any other time than at the opening of the trial. But whether the decision should have been made at that time or not, it was, impliedly at least, determined that then was the proper time, when the offer was made to allow the statement. The record does not show that the counsel for the defendant made any claim that they were misled, in any way, by the ruling of the court. No such claim was made at the time it was proposed to make the statement, nor was it made the ground of complaint in the motion for a new trial, nor even urged in argument. It seems to me to be rather a violent presumption to hold that counsel were misled by the silence of the court without that claim having been in some form made by counsel themselves. It should rather be presumed that the court made the offer at the proper time, according to the practice in that court. But conceding that the defendant's counsel were taken by surprise, I think the error is too inconsiderable to require a reversal of the case. The object of a statement to the jury is to prepare their minds to receive the evidence as it is introduced. No other statement should be made except a recital of the facts which the party expects to prove. The only facts which the defendant sought to prove were these: his wife testified that she saw no hogs brought to his house at the time it was alleged the hogs were stolen; and another witness testified that the trains on the railroad did not slacken their speed at a certain point where other witnesses had sworn that a certain train was slowed up. This, aside from some evidence which tended to impeach some of the witnesses for the State, was all the evidence introduced by the defendant. Now how the jury could have failed to properly understand and weigh this evi 52 608 94 54 52 608 120 246 The State v. Schele. dence without a statement of it by counsel is more than I can comprehend. If they could not they were not the twelve intelligent men that the district attorney claimed them to be. The facts upon which the defendant relied were so few and so plain as to need no statement, and as the law then was I think there was no abuse of the discretion of the court, which could have in the least prejudiced the defendant. THE STATE V. SCHELE. 1. Criminal Law: INCLUDED CRIME: ASSAULT. The crime of assault with intent to commit great bodily injury is included in an indictment for assault with intent to commit murder. 2. : : PRACTICE. Where the defendant was found guilty of a crime which, in the opinion of the court, was not included in the one charged in the indictment, it was held competent to sentence him for an offense which was included in the indictment, and also necessarily included in the verdict. Appeal from Muscatine District Court. WEDNESDAY, DECEMBER 10. THE defendant was indicted for an assault with intent to commit murder. He was tried and found guilty of an assault with intent to inflict great bodily injury. The defendant filed a motion in arrest of judgment and for a new trial. This motion was overruled upon all the grounds except one. The motion was sustained upon the ground that the court had misdirected the jury, in instructing them that they "could consider the crime of an assault with intent to commit great bodily injury, and find the defendant guilty thereof, if the evidence warranted such finding." The court thereupon ordered that the verdict stand as for an assault only, and sentenced the defendant to pay a fine of one hundred dollars and the costs of prosecution. The defendant appeals. The State v. Schele. D. C. Cloud and George R. Cloud, for appellant. J. F. McJunkin, Attorney General, for the State. 1. CRIMINAL DAY, J.-I. Counsel for the appellant insist that the court erred in instructing the jury that they could consider the crime of an assault with intent to do great bodily injury Jaw: eluded and find the defendant guilty thereof if the evidence warranted such finding. upon State of Iowa v. White, 41 Iowa, 317. crime: as sault. They cite and rely The court below in sustaining the motion in arrest of judgment, to the extent and upon the ground stated, evidently followed that case, as above reported. Upon a rehearing, however, which was granted in that case, a different conclusion was reached, and it was held that an indictment for an assault with intent to commit murder does include the offense of an assault with intent to commit manslaughter. State v. White, 45 Iowa, 325. For a like reason, such an indictment includes the offense of assault with intent to inflict great bodily injury. The court did not err in giving the instruction complained of. The error of the court was in sustaining the motion in arrest of judgment upon the ground that there was error in said instructions. But this error was not prejudicial to the defendant, and of it he cannot complain. 2.: : II. It is insisted that the court, having found that the defendant could not, under the indictment, be convicted of an assault with intent to inflict great bodily injury, practice. should have set aside the verdict in toto and granted a new trial. The court overruled all the grounds of the motion for a new trial, except the one above stated: As we have seen, that ground should have been overruled. The court was satisfied that the evidence sustained the verdict, and that the defendant was in all respects legally convicted, except that the offense of which the defendant was convicted was not included in the indictment. Under such circumstances the court did not err in sentencing the defendant for an offense included in the indictment and necessarily included in the verdict which the jury returned. VOL. LII-39. |