#### State of Iowa v. R. Dague Thompson, Appellant.

1 Assault with intent to commit murder: evidence of threats. In a prosecution for assault with intent to commit murder, evidence of previous threats of violence towards prosecutrix is admissible on the question of intent.

2 Evidence: character of defendant. The State may not assail the 'of a defendant directly until he has put it in issue, and then only by evidence of his general reputation or actual character with respect to the trait involved, and not by showing instances of misconduct.

3 Cross examination of defendant: other offenses. On a prosecution for assault with intent to commit murder, cross examination of defendant as to whether he had assaulted another in the presence of the prosecutrix should be denied.

4 Evidence: medical authority: cross examination. It was prejudicial error to permit the inquiry of a witness on cross examination, if a certain medical authority did not lay down the doctrine that insanity resulting from negligence should not shield the lunatic from punishment, counsel at the time reading from the authority, as it amounted to an attempt to get the book before the jury without offering it in evidence; and for the further reason that the questions were not pertinent.

5 Evidence: bad character: instruction. On a prosecution for assault with intent to' murder, where there is evidence that the prosecutrix was of bad moral character, the jury should be instructed that the only purpose of such evidence was to discredit her testimony, although instructed that the evidence of bad character furnished no excuse for the assault.

6 Instruction: circumstantial evidence. An instruction that circumstantial evidence “is to be regarded as direct and positive evidence of eye witnesses,” is error.

7 Instruction: included offenses. The court should define the offenses included in an indictment or apply the law to the facts so that the jur can understand what state of facts constituted each offense.

*Appeal from Linn District*Court.— Hon. Wm. G. Thompson, Judge.

*441Friday, May 5, 1905.

The accused was indicted foi* the offense of assault with intent to commit murder, and convicted of that assault with intent to commit manslaughter. He appeals.

*Reversed.*

*McCarthy & Lee*and *Redmond & Stewart,*for appellant.

*Charges'*IF. *Mullan,*Attorney General, and *Lawrence De Graff,*Assistant Attorney General,-for the State.

Ladd, J.

The defendant and Pearl *J*ones, while living with their parents at Ames, became acquainted on the 7th day of July, 1902. He was then eighteen years of age. She was a year older, and had been divorced from another after a matrimonial experience of six months. They became un-dully intimate, and, as the outcome of efforts to separate them, she went to the home of a cousin in Cedar Rapids, and he followed after; searching in vain for employment in Chicago, and possibly elsewhere. In the evening of February 22, 1903, he called to see her, and was permitted to await in her room for her return.She came shortly after midnight, ■when an altercation ensued, in which he drew a pocketknife and cut her several times. She had manifested great affection for him, and the evidence tended to show that what he did was incited by her expressed determination to abandon him for a life of shame. Many assignments of error are argued, but none involving any save the most elementary principles of law.

1. Evidence of threats. Thus appellant complains of the rulings by which proof of previous threats of violence toward Pearl Jones by the accused was received in evidence. This was admissible as hearing on his intention in the use made of the tnife. *Walker v. State,*85 Ala. 7 (4 South. Rep. 686, 7 Am. St. Rep. 17); *State v. Fry,*67 Iowa, 475; *442
      *Hodge v.*State, 26 Fla. 11 (7 South. Rep. 593). But the court erred in allowing her cousin to testify, over objection, that a week before the altercation she had advised him not to allow the accused to come to his house; that she was afraid of him.

2. Evidence Character of defendant. The father of Pearl Jones was a witness for the State, and, as a part of its evidence in chief, was permitted, over objection, to testify that the defendant had never been occupied, that he knew of, save as night clerk at a f°r a couple of weeks; that he had gone to school very little; that he spent his time “ bumming around town ”; that he gave him no encouragement to visit Pearl; that he had ordered him out of his house, and had heard his wife do the same; that he had sent Pearl to Cedar Rapids on the 4th of February previous to get her out of defendant’s company. All of this should have been excluded. The State is never permitted to assail the character of a defendant directly until he has placed it in issue. *State v.*Rainsbarger, 71 Iowa, 746. And even then this is not to be done by proof, of particular instances of misconduct, but by evidence of his general reputation or actual character with ¡respect to the trait involved. *State v. Sterrett,*71 Iowa, 386; *Gordon v.*State, 3 Iowa, 410; *State v. McGee,*81 Iowa, 17.

In this connection, the error in receiving the testimony of the sheriff of Story county, in rebuttal, that defendant for the two years past had been about town every night until from eleven to three o’clock, and that he associated with loafers, should be noticed. It was not in response to anything proven by defendant, and should have been excluded.

3. Cross- Examination of defendant: Other Offense. Immediately after defendant had given-his version of the transaction under investigation, he was asked on cross-examination: “You never struck your sister Pearl’s presence, did you>, and knock her down?” Objection as not cross-examination and immaterial was overruled. It should have been sus*443tained, and tbe prosecutor directed not to drag irrelevant matter into tbe record.

*1.*Evidence medical authority; cross-examination. Tbe defense interposed was tbat defendant did not appreciate tbe nature of bis act, and Dr. Hill testified tbat, in view of defendant’s early sickness, bis weakened condition, ^is youth, and excessive venery, bis physical and nervous make-up, and especially as tbis *1*x *°*was jjjs l0ye affair, and be bad been rejected, be was of unsound mind, and did not know what be was doing. On cross-examination counsel began by reading from Elwell on Medical Jurisprudence, and, over objection, tbe doctor recognized tbe reading as correct, and was then asked: “Doesn’t Judge Elwell also lay down tbis doctrine: Many insane criminals are educated and formed by their own negligence in tbis way. Should they not be held to a strict accountability ? To say such a one is insane, and therefore not subject to punishment, is to utter a dangerous folly and to encourage unchecked passions and fatalism.” Objection was overruled, and tbe witness answered: “ I believe tbat be does.” Tbis was manifest error. Eirst, it was an attempt to get tbe contents of a treatise before tbe jury by the subterfuge of reading from it, rather than offering to introduce it in evidence, and so doing not in cross-examination of anything tbe doctor bad testified to in chief, but as original evidence. *Bixby v. Ry. Bridge Co.,*105 Iowa, 294; *State v. Peterson,*110 Iowa, 647. It bad no bearing upon tbe subject of tbe inquiry of tbe expert, but related solely to a question of law, namely, whether insanity resulting from negligence on tbe part of tbe accused should be permitted to shield him from tbe penally of bis acts. Tbe questions were not pertinent, and were, in tbe connection put, extremely prejudicial.

*444
      5. Evidence: bad character; instruction.
      *443Evidence tending to show Pearl Jones was a woman of bad moral character was introduced. Its only purpose was to discredit her as a witness. Tbe court’s only reference to this was in cautioning tbe jury tbat tbis, if true, would *444furnish no excuse for tbe assault. Tbis was true, but, to avoid misleading, tbe jury as to' tbe object in ° , J *J*J introducing tbe evidence, tbis also might well bave been stated.

6. Instruction: circumstantial evidence. In tbe twenty-first instruction tbe court erred in saying to tbe jury that “ circumstantial evidence is to be regarded by you as direct and positive evidence of eye-*j j*, *r ,*witnesses.” Probably what was intended to be said was that it was of equal value.

7. Instruction: included offenses. While tbe jury was told wbat offenses were included in tbe indictment, none were defined. Tbis should bave been done, or else the law so applied to tbe facts that the jury could bave understood wbat state of facts would constitute each.

Other errors appear in tbe record, but will not be likely to be repeated. Enough bave been noticed to indicate the necessity of another trial.— *Reversed*and *remanded.*