#### State of Iowa v. Fred Krug, Albert Krug, Martin Krug, William Krug, John Bannish and Frank Fibaker, Appellants.

1 Criminal law: examination or witness: misconduct: pbejudice. A witness who was not before the grand jury may in good faith be called by the State for the purpose .of making a record, but that object is attained when an objection to his competency is sustained, and a further inquiry into the facts in disregard *232of the ruling and under the pretense of making a record is improper; but in the instant case the inquiries were of such a character that no prejudice resulted.

2 Assault: evidence of good character: instruction. On an issue as to who was the agressor in a prosecution for assault with intent to do great bodily harm, an instruction that evidence of defendant’s good character should be considered in determining whether the witnesses for the State were mistaken or had testified untruthfully, is not approved, although as applied to the facts in the instant case was not erroneous.

3 Instructions: definition of terms. An instruction that if defendants conspired to engage the prosecutor in a fight they could not be acquitted on the ground of self-defense was not objectionable as failing to define “conspiracy”; since the jury would be presumed to understand the word to mean merely a mutual understanding to engage in the affray, when considered in connection with the other instructions given.

4 Assault: indecent language: instruction. Refusal to instruct that abusive and indecent language never justifies an assault is not prejudicial error, where the evidence for the State shows that such language was not employed until after the prosecutor was assaulted, and the evidence for defendant shows it was not used at any time.

*“Appeal from Boone District*Court.— HoN. C. G. Lee, Judge.

Monday, November 18, 1907.

Ti-ie defendants were accused in tbe indictment of baying committed an assault witb intent to inflict a great bodily injury upon one Newton Pbipps, and were convicted of having committed an assault. They appeal.

*Affirmed.*

*Franlc Hollingsworth*and *D. G. Baleer,*for appellants.

*II. W. Byers,*Attorney-General, and *Chas. W. Lyon,*Assistant Attorney-General, for tbe State.

Ladd, J.

*233
      1. Criminal law: examina-misconduct: prejudice.
      *232Tbe first indictment against defendants was set aside on motion of tbe State. On resubmission, another, on which they were convicted, was returned. One Lockard, *233wbo bad not been called as a witness in tbe last investigation, but bad testified before tbe grand jury when , . . ° J *J*tbe first indictment was found, was called as a witness, and, on objection of tbe defendants, not permitted to testify. Notwithstanding tbis ruling, tbe county attorney proceeded to interrogate tbe witness as to whether be was tbe man wbo arrested defendants, where Martin Krug was at tbe time he went to make tbe arrest, what be was doing, and what was said between said Krug and tbe witness. Objections to each of these-inquiries were sustained, but appellants insist that, as section 5373 of tbe Code provides that tbe county attorney “ shall not be permitted to introduce ” such a witness, calling Lockard to tbe stand and especially asking him tbe questions after the court’s ruling was reversible error. Surely a witness may be called in order to obtain a ruling of tbe court. “ Tbe legislative intent,” as said in *State v.*Hurd, 101 Iowa, 391, “ was to enable a defendant to prevent such a person being used as a witness,” and this is accomplished by interposing a timely objection. If tbe witness is called in good faith, error cannot be predicated on this alone, for, as held in tbe case last cited, tbe statute is directory, and its benefits may be waived. Whether tbe conditions precedent to calling tbe witness have been observed is always a question for tbe court *(State v.*Dale, 109 Iowa, 97), and, after its ruling, there is no excuse for proceeding in disregard thereof on tbe specious pretense of making a record. The nature of tbe ruling is such as to preclude any showing of tbe admissibility of tbe evidence, which, but for it, might have been elicited, and tbis is never essential in order to challenge tbe correctness of tbe ruling. The inquiries should not have been permitted by tbe court, but they were of such a character that no prejudice could have resulted from making them.

*234
      evídenceof stractioS’
      *233II. Evidence was introduced tending to show that, prior to tbe offense alleged, tbe defendants bad borne a good *234character for morality, and had been peaceably disposed, and with reference thereto the court instructed the jury that *“*such facts (if facts they are) are competent evidence in favor of a party accused as tending to show that he would not be liable to commit the crime charged against him, and in this ease, if you believe from the evidence that, prior to the commission of the alleged crime, any of the defendants had borne a good character for morality among his acquaintances and in the neighborhood where he lived, and had been of a peaceable disposition, then the same is a fact proper to be considered by you with all the other evidence in the case in determining the question whether the witnesses, who have testified to facts tending to criminate such defendant, have been mistaken, or have testified falsely or untruthfully, and if, after a careful consideration of all the evidence in the case, including that bearing upon the defendants’ previous good character and disposition, you entertain a reasonable doubt of the defendants’ guilt, then it is your duty to acquit.” The remainder of the instruction was to the effect that, if found guilty, good character furnished no excuse. This court declined to approve a like instruction in *State v. Wolf,*112 Iowa, 458, on the ground that the leading thought expressed was that such evidence of good character could be considered only as affecting the testimony of witnesses. In that case, the State relied on circumstantial evidence and proof of admissions to corroborate the prosecutrix, and manifestly, to so limit the effect of the proof of good character was error. Here all the evidence was direct; the defendants relying on a plea of self-defense. The conflict in the testimony, in so far as important, related to the issue as to which was the attacking party. This being so, the only bearing the evidence of good character could have had was in tending to show that defendants were not the aggressors. According to the story of the State’s witnesses, they were such, and therefore the tendency of this proof must have *235been to show that they were mistaken, and thereby discredit the witnesses of the State to the contrary; in other words, in the language of the instruction, to show that they had “ been mistaken or testified falsely or untruthfully.” As applied to the facts of this case, the instruction was not erroneous, though it cannot be' commended. It seems to have been taken from Sackett on Instructions to Juries (2d Ed.) 662, the fruitful source of many mistakes in charges to juries.

3 Instructions* definition ‘ of terms. III. After advising the jury that the attacking party may not plead self-defense, save at least as against the use of excessive force, and the right of the party assailed to resist, the court proceeded to say that, if de- • • fendants “ entered into a conspiracy, or . _ agreed or confederated together, -with the design or purpose of engaging the said Newton Phipps and. others in a fight, or (2) that they voluntarily sought or invited the difficulty, or (3) that they provoked or commenced or brought it on by any willful act of their own, or (4) that they voluntarily and of their own free will engaged 'in it, then and in that case you are not authorized to acquit such defendants as were so concerned upon the ground of self-defense, and, in determining who provoked or commenced the difficulty or made the first assault, you should take into consideration all the facts and circumstances in evidence before you.” The objection is to the use of the word “ conspiracy ” in the first clause of the instruction, and it may he conceded that it might as- well have been omitted, as it was not defined save in the words following. But jurors are presumed to understand the English language and the meaning of the words in common use. With the explanatory words, following it, this jury could not have been misled into thinking that, as employed, the word was other than a mutual understanding of defendants with the object of engaging in the fight. If they so did, they were not in a situation to plead self-defense.

IV. • Instructions requested and refused, except No. 7, *236in so far as correctly stating the law, were included in those given.

4. Assault: indecent language: instruction. The seventh request was, in substance, that abusive or indecent language never justifies an assault, and if employed by defendants, or any of them, would not excuse Phipps'or any of his companions in assaulting defendants. The witnesses for the State testified that, though such language was used, Phipps was struck first, while, according to the witnesses for the defense, no such language was employed. In these circumstances, though the instruction might well have been given, the refusal to give it was not prejudicial.— *Affirmed.*