193 Iowa 1206 | Iowa | 1922
Lead Opinion
— The petition was filed February 24, 1919, and alleged, in substance, that deceased came to his death by a wound inflicted upon him by a knife or other sharp instrument in the hands of Edward- A. Seaba, and by a blow over the head and shoulders by a blunt instrument then and there in the hands of William D. Seaba; that said wound was inflicted and said blow struck without reasonable justification, about September 5, 1918, on which day deceased died, as a result of said wounds. The defendants answered in general denial. On October 5, 1920, plaintiff filed his substituted petition, alleging substantially that, about September 5, 1918, defendants, with force, did maliciously, wrongfully, purposely, and without lawful excuse or justification, and they in concert, one with the other and together, did assault, beat, wound, stab, and cut said Walter Keck; that defendant William D. struck deceased with a club or other blunt and deadly instrument, over the shoulders and
1. The sufficiency of the evidence is challenged by appellant. Though this question is not in the order presented in the arguments, we shall take it up first, that the other points raised may be better discussed and understood. Some of the facts are undisputed, but at other points, particularly as to the transaction itself, there is a sharp conflict. Each side claims that the other was the aggressor, and started the trouble. Appellant contends that he was acting in self-defense, and there is evidence tending to so show. The evidence was such that a finding by the jury either way would have had sufficient support. In quarrels such as that involved in this case, there is nearly always a decided conflict in the testimony of the witnesses upon either side, and as to just what was said and the positions of the parties at a particular instant. The present case is no exception. Some seven or eight witnesses testify for plaintiff in regard to it; also a doctor in regard to the injuries to deceased, and that they were the cause of his death; and the two defendants, a brother, and a nephew, testify for defendants in regard to the transaction; and a doctor testifies as to marks on appellant, Edward. Each of the witnesses to the transaction testifies at considerable length. An examination of the record in.regard to the facts has been somewhat laborious. Numerous corrections have been made in an additional abstract by appellee, and this in turn is followed by a denial and corrections, with a certification of the transcript of nearly 400 pages, which has no index. In some instances, we have had to search the transcript at pages other than those cited. The purpose of counsel is, doubtless, to try to present the case as nearly as may be in the way in which the jury had it — the shadings given to the testimony of the diferent witnesses, as well as that can be done in type. The jury and the trial court saw and heard, with their own eyes and ears, the matters which counsel have attempted to present to us. Naturally, the expression of the eye, features, appearance,
“Q. He was talking to you? A. No, he was talking to others. * Q. You simply butted in? A. I said, 'Yes, they will.’ Q. Well, you butted in, didn’t you? A. Yes. Q. And you took it upon yourself to call him a pro-German, didn’t you?*1211 A. I did not. Q. What did you say ? A. I said,‘pro-German as hell.’ ”
The tendency of plaintiff’s evidence is to show that deceased said not to call him a pro-German; that he was no more pro-German than defendant. Appellant walked around, and said something to deceased, and deceased then said:
“Now you go awa,y from here, — you don’t know anything, and I don’t know anything either.”
Appellant then said:
“You damned pro-German, all you ever did stick up for was for the damned Dutch; you - pro-German, why aren’t you going with these boys?”
Deceased said:
■ “I am ready to go any time they will take me. I could not go with this bunch. I am going with the next bunch, and I don’t need you to see me off either.”
Deceased had not claimed exemption: he was classified to go in about two weeks. Thereupon, appellant said, “If one of you men will come with me, I will knock the son-of-ab — —— down right here.” At this, a niece of appellant’s said to him:
“Uncle Ed, aren’t you ashamed of yourself? Why don’t you go away and keep still? Aren’t you ashamed to start a fuss here like that?”
Deceased was angered by defendant’s statement. The train arrived about 11 o’clock, — one witness puts it 11:30,— and departed soon afterwards. There is evidence, though denied, that Ray Seaba, a nephew of appellant’s, said, either to deceased or to his brother, that appellant “called you a pro-German. He ought not to have done it. You ought to go over there and make him take it back, and if you want to know where Uncle Ed is, he is over at the Milwaukee stockyards.”
Some of the evidence is that deceased then said he would go over and ask him to take it back, to retract the epithet that deceased was a pro-German, etc.; and other evidence is'that he would go over and make him take it back. This was at the creamery, a short distance south of the Rock Island depot. The deceased, his brother Frank,. Bruns, and perhaps others, started
From the foregoing, it appears that just before, or when, the fight began,- — and it is appellee’s contention,-— deceased was not armed, and had nothing but his naked fists, when he struck appellant. It is also contended by appellee that deceased did not, in all that was said, ever threaten to do more ^than give appellant a whipping with his fists. There is evidence that, after the board was dropped, two witnesses saw appellant slip his right hand in his pocket, just before deceased struck him, and that he still had his hand in his pocket when deceased struck, and appellant was advancing towards deceased with his right hand in his pocket. Appellant says that he had his pipe in his hand, and put it in his pocket. Before appellant got his hand out of his pocket, deceased struck him in the face. The doctor for appellant testifies that it loosened the cartilage in the nose, and made a small abrasion, but the skin was not broken. There was a scratch or mark on appellant’s finger. When deceased struck appellant, appellant was knocked down, and some of the witnesses say deceased struck again. Another witness says he seemed to be trying to get hold of appellant’s hands. According to plaintiff’s testimony, while deceased was thus stooping over appellant, William D. Seaba came up with a board, and struck deceased over the head. Just then deceased raised himself up, and said, “Oh! Oh!” and as he left the pen, exclaimed, “I am stabbed!” Appellant got up, and saw Frank Keck still in the pen, and said:
“You three-fingered son-'o'f-a-b-, get out of here, or I will get you next. ’ ’
A witness for plaintiff says that, after William D. Seaba hit deceased with a board, deceased raised himself up from appellant, threw up both hands, and made a kind of long moan or groan, turned to the right, staggered to the fence, climbed
“I asked him some questions. I began to question him about 12:10. Will not say it was all the effect of the medicine that revived him. I gave him one or two hypodermics,- — -I think three. The strychnine would whip up the heart, and the morphine would stimulate the nerves. He said that Bill Seaba struck him with a board, and Ed Seaba had stabbed him; that Ed Seaba stabbed him, and afterwards Bill Seaba struck him.”
Dr. Dulin describes the wounds on deceased: a slight abrasion on one shoulder, and a stab wound in the lower left abdomen, about three inches from the middle of the body, and almost down to the groin, nearly transverse; penetrated through the abdomen wall to the intestines. The wound was about three fourths of an inch long. There was a great deal of hemorrhage, — not much at first; and later, there was a large hemorrhage internally. Cause of death was the internal hemorrhage, due to the stab wound.
We should have stated that witness Herman testifies that he saw a knife on the ground, right below where Ed and Walter were fighting; that deceased was the closest to the knife; that he did not pick it up, — never thought about it any more until he came up town; that he thought that whatever was the matter with deceased was because of Bill’s lick, and didn’t think of
“The first thing that I knew that Walter Keck was there, I heard him say: ‘God damn you, Ed Seaba, you take back that, or I will beat you. Come out here.’ I told him to go away, I wanted no trouble with him; that these pens were mine. ‘My stock is in here, and this pen is mine.’ I took my cane this way, and told him, ‘You stay out of here.’ He said, ‘Come out here, or I will come in,’ and he jumped back and grabbed a board. This is the board. There were nails; I noticed the nails in the board. He walked up to the fence and drew back as though he were going to throw the board through the fence, and Herman said to him, ‘Why, Walter, this won’t do;’ and then he climbs on the fence and brought the board over with him. He had the board in his hand when he got into Pen No. 2, and Herman said, ‘Why, Walter, this will never do.’ Frank Keck said, ‘Don’t ask him to take it back; go to him.’ Frank Keek was standing’ back of me, a little to the northeast, and all at once I was pushed forward, and the same time Walter hit me, and struck me over the right eye and over the nose. I was standing this way, and he struck me a blow right here, and I fell this way. I fell, and Walter grabbed me by this arm, and kept jerking that up. I tried to hold it down, so that he couldn’t hit me in the face, and he hit me on the back of the head several times. With that, he was up and gone. After Walter Keck knocked me down, he had ahold of my arm right here, and was at my back; and that would be west, or perhaps a little southwest. When he had hold of my arm, he was hitting and pulling at my arm. I think he hit me three times after he had me down. After I was knocked down, I didn’t see my brother Will. After Walter got off of me, I straightened up, and I had my watch in my shirt pocket. I had no coat on, and as I straightened up, my watch was hanging down, and I püt that in my pocket with my left hand. I had my cane in my right hand, and Frank was standing there. I said to him, ‘What are you doing here?1*1216 and with that I came up and drew my cane back to hit him, and he started to run.”
We do not understand appellant to claim that deceased had the board in his hands at the time he was struck, or that deceased struck him with the board. Defendant William D. says:
“With that, Walter climbed the fence with this board; but when he got on the ground, Herman says, ‘Why, boys, this won’t do.’ Then the board was laid down.”
We have gone more into detail than intended; but this, in a general way, is the case. Defendant’s witnesses give a different version of the transaction, and as to what took place at the time of the fight. As said, there was a conflict, and at some points a sharp conflict in the testimony. Without going further into details, or setting out more of defendant’s testimony, it is enough to say that clearly there was a question for the jury as to what was done, and as to whether appellant was acting in self-defense.
This disposes of the two errors assigned in regard to misjoinder and the statute of limitations. The court did not err in the different holdings and rulings in regard to these matters. We shall not stop to review the numerous cases cited. As supporting our conclusion in regard to the alleged misjoinder, see Overstreet v. New Nonpareil Co., 184 Iowa 485, 492; Boswell & Tobin v. Gates, 56 Iowa 143. As to the alleged new cause of action and the statute of limitations,, the following, among other
*1220 “Incompetent-, and defendants further object to the attorney making the motion as if he were stabbing someone, as immaterial, ■ irrelevant, and prejudicial.
“Court: Sustained, if the attorney made any motion of that kind. That would be absolutely wrong, and gentlemen of the jury, you will not give any consideration, if he did anything. (Plaintiff excepts.) ”
There was no exception by defendants. Furthermore, it does not appear that plaintiff’s attorney did make such a motion. The only record is that plaintiff included that statement in the objection. Evidently the court did not see it. The court admonished the jury not to consider it, if it did occur. We think there was no error here.
6. Nineteen instructions were given by the court, eight of which are complained of, and are thought' by appellant to be
Another instance: The court defined the expression "a dangerous and deadly weapon.” It is appellant’s thought that this was erroneous, in that it limits such a weapon to mean an instrument or means other than the fists; and that, in the instant ease, defendant, as he claims, was assaulted by deceased 'with a board and with his fists; and that the actual battery was inflicted with the fists; that the jury might conclude that the fists might not be used as dangerous and deadly weapons. The instruction could, of course, refer to the knife, as well, if it was used. The instructions nowhere say that the fists might not, under some circumstances, be considered dangerous. In other instructions, the jury was told that’ it was proper to take into
“But before one is justified in taking life in self-defense, it must be, or it must reasonably appear to be, the only means of saving one’s own life, or prevent great bodily injury. If it is evident to the assaulted that the danger which appears to be imminent can be avoided in any other way, as by retiring from the conflict, the taking of the life of the assailant is not excusable. And if you find in the evidence of this case that, at the time the said Walter Keelc assaulted the defendant Edward A. Seaba, the said Edward, from the character of the assault, had reason, as an ordinarily prudent and courageous man, to believe, and did in good faith and honestly believe, that he was in danger of being killed, or suffer great bodily injury, and that the parties were so situated that he could not have retreated, or that he could not reasonably have expected to have preserved his life or protect himself from injury by retreating, then, in that case, the said Edward was justified in using such force and such means to protect his life and person as may, in good faith, have then appeared necessary to him,” etc.
The quotation has nothing to do with the question of retreat. We do not find that the doctrine of retreat was discussed in the Moran case. We have seen that the old rule in regard to this has been modified, not only in this state, but quite generally. We think this case is ruled by State v. Borwick, 193 Iowa 639. See, also, State v. Gough, 187 Iowa 363, 367, 368; State v. Evenson, 122 Iowa 88; State v. Dyer, 147 Iowa 217, 221; and other cases cited in the Gough case.
Under the undisputed evidence, the giving of this instruction, or the part of it discussed, in this form, was error, and prejudicial to the appellant. Because of it, the cause must be reversed. Whether, under all the evidence, appellant was justified and excused, on the ground of self-defense, was for the jury.
The word “absolutely,” in Instruction No. 9, is complained of. A part of that instruction is:
“But if the defendant Edward A. Seaba was not’reduced to such apparent extremities or danger as reasonably appeared to him to render it absolutely necessary to use a dangerous and deadly weapon,” etc.
Other instructions and numerous other questions are raised and argued, but they are not such as are likely to occur on a ■retrial, and we shall not prolong the opinion to discuss them in detail. The cause is — Reversed and remanded.
Concurrence Opinion
concurs in the result, but not with the discussion as to res gestae.