#### State of Iowa v. Thomas Murphy, Appellant.

Included Offense: failure to charg-e upon. The defendant was charged with assault with intent to kill, and the court charged that he should be found guilty or not guilty. . The defendant did not ask for instructions as to the offenses included in the one charged in the indictment, and there was no evidence to justify giving them. The included offenses were separate and distinct, and not degrees of the one charged. *Held,*that it was not necessary to give instructions covering them.

*Appeal from Polls District Oourt.*— Iíon. O. A. Bishop, Judge.

Thursday, October 5, 1899.

Dependant was indicted, tried, and convicted of an assault with intent to commit murder, and from the sentence imposed *appeals.-*

Affirmed.

*T. D. Hastie*for appellant.

*Milton Bemley,*Attorney General, and *Ohas A. Van Vleclc*for the State.

Deemer, J.

The trial court did not instruct as to included offenses, but told the jury, in substance, that they should find the defendant guilty of the offense charged or not guilty. The evidence shows that defendant fired four shots at the prosecuting witness, one of which took effect on *117the arm, near the elbow. There is no evidence whatever tending to .show any excuse or justification for the act; indeed, all of it tends to show a deliberate purpose and intent to kill. It is time the court instructed with reference to self-defense, hut that instruction was given to meet the argument made by defendant’s counsel. The defendant did not ask any instructions, hut he excepted .to those given by the court. Now, while it would have been proper for the court to have instructed as to the included offenses, yet, as the defendant made no request, we do not think it was prejudicial error to omit them in view of the record before us. In *State v. Mahan,*68 Iowa, 307, it is said: “Whether it is necessary or proper for the court in any case to instruct the jury as to the offenses lower than that charged in express terms in the indictment, which are included in it, must depend on the facts of the case as they are shown by the evidence.” Again, in *State v. Cole,*63 Iowa, 695, it is said “that it is not error to omit to instruct in regard toi a degree of crime of which the jury, under the evidence, could not have found the defendant guilty.” The instructions given by the court were correct and complete in so far as they related to the crime charged, and defendant asked no instructions with reference to included offenses. Speaking of such a, situation in *State v. Hathaway,*100 Iowa, at page 228, we said: “When those given are not erroneous, the judgment of the district court will not be reversed for failure to give instructions not asked, unless in an exceptional case, when this court is satisfied that the failure to instruct properly has deprived defendant of a fair trial;” citing *State v. Helvin,*65 Iowa, 291. See; as further supporting these propositions, *State v. Reasby,*100 Iowa, 231, *State v. Sterrett,*80 Iowa, 609, *State v. Perigo,*80 Iowa, 37, *State v. Casford,*76 Iowa, 330, *State v. Mahan,*68 Iowa, 304. We do not think there was prejudicial error in omitting -the inistrudtion^ as to included offenses. The defendant was clearly guilty of the offense charged, or not guilty of any offense; and it was *118proper for the trial court to find there was no evidence to justify the giving of other instructions. In any event, we are perfectly satisfied that defendant had a fair trial, and that the result would not have been different had the instructions as to included offenses been given. It is to be noted that the included offenses are not degrees of the crime charged. In such case failure to instruct as to the included degrees may be prejudicial error. But where the offenses are distinct, as in the ease at bar, failure to' give instructions as to the included crimes is not necessarily prejudicial error, in the absence of request from the defendant. The cases relied upon by appellant are fully explained in *State v.*Cole, *supra.*No prejudicial error appeal’s, and the judgment is affirmed.