157 Iowa 126 | Iowa | 1912
— Appellant lived on a farm in Johnson county; but owned a livery stable in the town of Lone Tree in the management of which he employed Oliver P. Driver, the deceased. On the 13th day of June, 1910, appellant came to Lone Tree', and while at the barn with Driver, no other person being immediately present, a quarrel or angry dispute arose between them. They were seen to emerge from the front door of the barn into the street; Driver, who was considerably the lighter man of the two, backing or (as some of the witnesses express it) “sidestepping” away toward the middle of the street, the appellant following him up in an angry or threatening manner, until, at a point variously estimated at from fifteen to twenty-five feet from the barn, appellant, suddenly stooping, caught up a stick or piece of board lying on the ground, and struck Driver an overhand .blow upon the head, breaking his skull, and inflicting an injury from which death soon ensued. The movements and conduct of the parties from their exit from the barn to the striking of the blow which terminated their quarrel were observed by several witnesses, none, however, being sufficiently near to interfere or to understand
The errors assigned are too numerous to permit their separate consideration' within the reasonable limits of a written opinion, and we shall confine our discussion to those which seem to be of controlling importance.
It is argued that the concealment of the truth as to the fact of the juror’s confinement in the jail at that time was a fraud upon the defendant and upon the court, which should be held to vitiate the verdict. We think this exception can not be sustained. The inquiry into the reason for the juror’s presence at the jail where he saw the appellant was incidental only to the ultimate question of his impartiality and fairness of mind as between the state and the accused. Whatever may have been the true explanation of his presence there, it had no material bearing upon his competency as a juror, if as a matter of fact he was not there exposed to influences, or did not there obtain information or receive impressions, tending to bias his judgement to the prejudice of the appellant. The juror himself swears that he did not then know or hear anything about the case, and had no conversation upon the subject with appellant. True, the latter denies this statement, and says that he did talk with the juror and in his presence concerning the killing and the circumstances thereof. We doubt whether upon such a conflict of testimony, and with no other showing as to the circumstances, the trial court would have been justified in disturbing the verdict. Even upon appellant’s own testimony there is no showing what particular things were said to or in the presence of the juror, and the court is in effect asked to presume that
Moreover, it appears from appellant’s statement that he discovered the identity of the juror as a fellow inmate of the jail while the trial was in progress, but no action was taken thereon until after verdict had been returned. The objection was therefore untimely, and must be held to- have been waived. Had he deemed the objection a vital one, i’t was his privilege to announce the discovery to the court, and demand an entry of mistrial or the impanelment of another jury. He could not rightfully speculate upon the hope of a favorable verdict from the objectionable juror reserving the right in the event of disappointment to insist upon the incompetence of that juror as a ground for a new trial. Foedisch v. Railroad Co., 100 Iowa, 728.
Soon after the homicide, a photographer, at the instance of the state, took a series of photographic views, placing his instrument at the several places occupied by the witnesses of the affray, and focusing the camera upon the spot twenty-five feet from the barn door where the prosecution claims Driver was struck down. Other views were taken placing the instrument at the last-named spot, and directing it upon the several localities occupied by the witnesses. These views were identified and admitted in evidence over the objection of the defense. Error is assigned upon this ruling. It is complained that the photographer was permitted to speak of the spot twenty-five feet from the door as “the place where Driver fell,” when it was conceded by all parties that he had no knowledge of the fact, except as he had been told by others. It is true that the witness made use of the expression criticised, but, giving a fair statement of his testimony, it is perfectly clear that he meant no more, nor could any juror of average intelligence have understood him as meaning any more, than that this was the spot pointed out to him as the place where Driver fell, and that the photographs were taken to illustrate that particular spot and its surroundings. Such evidence is being made use of practically every day in the trial courts. The photographer takes his view from the
It also appears from the physician’s testimony that a wound was found on Driver’s ear,- and, upon being asked whether this injury could have .been caused by the same blow which fractured the skull or by another distinct stroke, he replied that the wound was more probably the result
Testimony is not necessarily incompetent because counsel deduce unwarranted conclusions therefrom. But aside from this obvious generalization, if two wounds were found upon the head of the deceased, we see no reason why the fact should not be shown in evidence, even though no witness saw more than a single blow delivered, or why the possible inference that a blow had been struck before the parties emerged from the barn was not a legitimate matter of argument. True, the wound on the ear may have been received in the fall of the -deceased when knocked down by the appellant or from some cause for which he was in no manner responsible, but its discovery and treatment by the surgeon immediately after the affray was over makes it fairly a part of the res gestae to be given to the jury for what it was worth.
The proper inquiry is not merely whether a given circumstance is immaterial, but whether, if immaterial, it is reasonably calculated to mislead the jury or affect its verdict. We feel no such result could follow the giving of this evidence.
Other errors are assigned upon the admission of evidence to impeach the testimony of certain witnesses examined on the part of the defense, and of the conduct and manner of the state’s counsel in the examination or cross-examination of witnesses. We can not undertake to consider these in detail. We have examined the record in each instance with care, and find no error calling for the interference of this court.
Whoever kills any human' being with malice aforethought, either express or implied, is guilty of murder. Malice aforethought is a necessary ingredient in the crime of murder, either of the first or second degree, and must be established by the state before you would be justified in finding the defendant guilty of murder in either degree. By ‘malice’ is meant not only anger, hatred and revenge, but any other unlawful and unjustifiable motives. It is not confined to ill will against the individual, but is intended to denote an action flowing from any wicked and corrupt intent. An act done with a wicked mind and attended. with such circumstances as to plainly indicate a heart regardless of moral and social duties, and fully bent on mischief, indicates malice within the meaning of the law. The word ‘aforethought’ used in connection with the word ‘malice’ in our law simply means thought out or conceived beforehand, but it is not necessary that such malice should have existed for any considerable length of time to constitute malice aforethought within the meaning of the law. It is sufficient if it exists for any length of time before the commission of the act. -‘Malice aforethought’ may be either express or implied. ‘Express malice’ means a settled purpose and design to commit the offense in question, and must be shown by proof of that fact directly and without inference. It may be proved as generally understood by expressions of hatred, threats, and the like. ‘Implied malice’ means that which may be inferred from the act and fact shown. Thus, when a wanton, wicked, cruel, or revengeful act is shown, the inference or implication may be drawn that the person who did such act was actuated by malice.
Not only is the jury not given direction or license to
If the barn was in some sense the appellant’s “castle” from which he might lawfully expel the deceased, and deny him re-entrance, the expulsion once being accomplished, it was his 'duty to cease the display of force and permit the intruder to depart.
Of course, if Driver was in fact armed, and instead of retiring from the conflict was simply moving about seek
Some members of the court would have been better satisfied with a conviction of manslaughter, but all are united in the conclusion that the finding against the theory of justifiable homicide is well sustained by the record.
Other questions have been presented by counsel. Most of them are governed by the conclusions hereinbefore announced and others are not sustained by the record.
The judgment of the district court will therefore be— Affirmed.
SUPPLEMENTAL OPINION.
— On the consideration of appellant’s petition for rehearing, the court is of the opinion that the sentence be reduced to fifteen years, and it is' so ordered. Otherwise the petition for rehearing is overruled. — Overruled.