(dissenting). — I am quite 'convinced that there was no prejudicial error, if error at all, in instruction No. 4 given by the trial court.
There is scarcely a subject in the law more evasive of complete and accurate definition than “assault.” Practical recognition of it in a given case is often easier than a legal definition of it. I know no definition of assault that is concise on the one hand and all comprehensive on the other. It is often defined as an unlawful attempt to do immediate and intentional violence to the person of another, coupled with the apparent ability to do such violence. Such a definition will cover perhaps a large majority of actual cases, and yet it does not comprehend them all. A familiar illustration of an assault which is not covered by such definition is the pointing of an unloaded gun at another. State v. Shepard, 10 Iowa, 126. Such an act is deemed to be *214an assault, even though the person pointing the gun knows it to be unloaded, and can, therefore, have no intention to discharge it at the supposed victim. Such an act constitutes an assault in the sense that it partakes of the nature of a threat, which is calculated to put the other party in fear.- I find no fault with the definitions quoted in the majority opinion. I only desire to suggest that no one of them, will cover all cases of assault.
The excerpt quoted in the majority opinion from McClain’s Criminal Law (volume 1, section 232) is an elaboration of the subject rather than a definition of the term; and I am in full accord with it. That discussion is by no means condemnatory of the instruction given by the trial court. The instructon as given was peculiarly applicable to the evidence, and should be considered, of course, in the light of the evidence. The evidence on behalf of the state was that Butler was coming down the sidewalk in the direction of Young, and was thus approaching him. When he had come within a few feet of him, he began an altercation, and manifested great anger. When within two or three feet of Young, he said: “I have come up to get you, and I am going to kill you.” He had in his hand at that very moment an open knife with which he inflicted a severe wound upon Young a few moments later. When Young heard the threat and saw the open knife, and perceived the anger and apparent intention of Butler, he told Howard to “catch his hand,” and he himself took “hold his hand.” This was done before the wound was actually inflicted by Butler. The question for the jury at this point was, Who was the aggressor? This was the occasion for a definition of assault appropriate to the evidence. If Butler was the aggressor, then Young was justified in trying to disarm him. If Butler was not the aggressor, then necessarily Young was.
Assuming the truth of the testimony of Young, and assuming, further, that Butler was then actually intending *215to execute his threat, it will hardly be denied thai Butler was the aggressor. If so, he had committed an assault in some form and at some point in the development of the altercation. In the light • of this evidence the trial court instructed: “An assault is an unlawful attempt or threat by violence to do injury to the person of another. To constitute an assault, it is not necessary that an actual injury be inflicted, but it is sufficient if there be an unlawful attempt or threat to do violence coupled with the present means and intention of carrying the threat into effect or execution.” I grant that a “mere threat” is not an assault, and that an assault can not consist of “mere words” or “words only.” Neither did the instruction under consideration permit the jury to find an assault from a “mere threat.” It directed the jury that, in order to find an assault,- it must find not only the “unlawful attempt or threat,” but it must also find that Butler had the “present means and intention” to execute his threat. The additional circumstances to which this instruction was applied were the proximity of Butler’s approach to Young, his anger, his open knife. Were these circumstances sufficient to warrant an inference by the jury of an intention by Butler to execute his threat? If so, the instruction permitted the jury to find Butler to be the aggressor. The instruction did not make the “mere threat” the criterion. By this instruction Butler’s entire conduct at this point was put under scrutiny in order to determine his intention. His conduct culminated in the threat which gave color to his preceding acts. It revealed, also, the immediate peril to which Young was exposed, and it tended to put him in fear. Assuming the hypothesis of this instruction to be proved to the satisfaction of the jury, could the same jury find, even under a correct definition, that Young was bound to wait for some further overt act before availing himself of the right of self-defense ? Can it be possible that his effort to disarm Butler under such a state of found facts *216could be deemed an assault on Ms part? To quote from 1 McClain’s Criminal Law, section 232: , “Mere words will not constitute an assault, but words may be important as giving color to acts, and may make that an assault wliich would not otherwise be one.” I am impressed myself that the instruction was appropriate as applied to the evidence. But, in any event, the instruction could not have been prejudicial to the defendant, even though it be deemed inaccurate in the respect urged. The instruction availed nothing to the state, unless the jury should also find from all the circumstances that the defendant was then intending to execute his threat. If he was so intending, then his precedent acts in carrying an open knife and in approaching to within two or three feet of Young with such intention was necessarily “violence begun.” The statute calls upon us in such a case as this to ignore “technical errors or defects which do not affect the substantial rights of the parties.” Code, section 5462. If there is an error here, it is to my mind thoroughly technical, and does not affect the substantial right in the case. When we reflect further that the word “assault” is a part of our common speech; that it is used in the statute without definition; that it is understood by everybody better than it can be defined by anybody; and that failure to define it at all in instructions to the jury constitutes no error, as we have heretofore held — it emphasizes the want of prejudice appearing herein.
II. Referring to the excessive sentence, the time served on the former sentence was twenty-one days. A reduction of the sentence t'o that extent can be ordered here as well as in the lower court.