118 Iowa 474 | Iowa | 1902
The unfortunate encounter between deceased, who is referred to by some of the witnesses as
There was evidence in support of two theories of defense: First, that the revolver was accidentally discharged, and that thé injury to deceased was without any intention on the part of defendant to shoot the deceased; second, that the revolver was used by defendant for the purpose of shooting deceased in self-defense. There was a conflict in the testimony as to which- of the two parties to the encounter was the aggressor, there being some evidence that defendant, after an exchange of hostile words with deceased, seized him by the coat collar and pulled him oil' the steps of the car, while defendant testified (and there was some evidence to corroborate him) that deceased followed defendant from the steps of the car, striking him two or three times with his fist, inflicting severe personal injuries, before the revolver was discharged. It is shown that deceased was a large and powerful man, while defendant is of not above ordinary stature, and slight in body. Witnesses who saw defendant soon after the encounter testified that he had been badly bruised and beaten; but, on the other hand, it appears that, after the revolver was discharged, deceased threw defendant to the ground, and some of the injuries which the latter received may-have resulted from the violence then used.
Defendant further offered to prove that after deceased left one saloon, about midnight, he went along the street towards the place where the affray occurred, and invited a person with whom he had' no previous acquaintance to have a lunch at another lunch car than that above described, and that deceased at that time had a controversy with the owner of the lunch car; further, that, after having gone with this acquaintance to a saloon near by, deceased said, on leaving this place, that he was going to see the Irish; and that he might have trouble up there, and that, if it got too warm, the witness need not stay, at the same time making the remark that he did not like the Irish, anyhow; and that deceased then went to another saloon, kept by one Hickey, which was within three hundred feet of the fatal affray, where deceased threw open the door in a boisterous manner and inquired where a
We have thus indicated the vital question which we find it necessary to decide in determining this appeal. Without evidence that the quarrelsome disposition of deceased while intoxicated was in any way known to the defendant a,t the time of the affray, the only materiality of evidence as to such quarrelsome disposition was for the purpose of showing which of the parties to the encounter was the aggressor; and for appellant it is insisted that for this purpose acts of aggression towards other persons, committed within a short time'before the affray, and in the course of the progress of the deceased toward the scene of the affray, might be shown, in addition to the general reputation for quarrelsome disposition of deceased while intoxicated. The violent, quarrelsome, or reckless disposition of the deceased, or previous threats of deceased toward the defendant, if in either case known to the defendant at the time of the affray, may be shown in behalf of defendant where self-defense is relied on; and this is under the well-established principle that one who is assaulted and is acting in self-defense is justified in determining, as a reasonable person, the extent of the peril in which he-is placed, by taking into consideration the violent character or previous threat's of his assailant,
But the ground on which uncommunicated threats or violent and reckless disposition of the deceased, not known to the defendant at the time of the affray, may be shown, _ is quite different. Evidence of such threats or disposition is admissible for defendant when the question is who was the aggressor in the affray; the theory being that in case of uncertainty the jury may take such threats or violent and reckless disposition of the deceased into account, as tending to show that he, rather than the defendant, was the aggressor. That this is the rule as to uncommunicated threats, see State v. Helm, 92 Iowa, 540; Wiggins v. People, 93 U. S. 465 (23 L. Ed. 491); People v. Scroggins, 37 Cal. 676. As to admissibility of evidence of violent, reckless, or quarrelsome disposition, see State v. Matthews, 78 N. C. 523; Palmore v. State, 29 Ark. 248, 262; and particularly State v. Spendlove, 44 Kan. 1 (24 Pac. Rep. 67), in which the leading cases on the subject are cited and discussed. Now, if evidence is admissible in such cases tending to show in general a violent, reckless or quarrelsome disposition, it certainly -would seem to us that, with equal or even better reason, acts of violence or quarrelsomeness, indicating a state of mind continuing up to the time of the affray, and which would be likely, in ordinary human experience, to lead to aggression and combativeuess at that time, might be shown, although the particular acts of violence or quarrelsomeness where not directed towards the defendant personally, provided they were committed under circumstances indicating an existing disposition. It would seem that such acts, as a part of the course of conduct of the deceased immediately preceding the
There is no apparent reason why the same principle is not applicable to the conduct of the deceased immediately preceding an affray in which he loses his life, where the intent with which he enters into the affray is material. And it has been so held with reference both to acts and declarations of the deceased indicating a violent or aggressive disposition at a time nearly connected with the affray. People v. Lilly, 38 Mich. 270, 277; State v. McNally, 87 Mo. 644; Muscoe v. Com., 87 Va. 460 (12 S. E. Rep. 790.) And see State v. Sterrett, 68 Iowa, 76. It is true that, where the general reputation alone is material, particular acts and conduct with relation to third persons cannot be shown. State v. Peffers, 80 Iowa, 580; State v. Abarr, 39 Iowa, 185. But these were cases in which the specific acts or declarations sought to be shown were remote from the transaction in question, and not so connected with it as to indicate the disposition or intention with which the party entered into the difficulty. In the case before us, however, the evidence offered was so closely connected with the affray in which the deceased lost his life as to furnish a material indication with reference to the disposition with which the deceased engaged therein.
But it must be borne in mind that this was a second trial, and that the general nature of the evidence was already known to both parties; that defendant might be allowed, if he saw fit, within the reasonable discretion of the court, to introduce his evidence out of its logical order; and that the trial judge expressly based his exclusion -of the offered evidence, not on the ground that no overt act of assault or aggression on the part of deceased had been shown, but on the ground that, “when the purpose is to show the quarrelsomeness or quarrelsome disposition of the deceased, no specific acts can be shown, such as quarrels with third persons and violence towards third persons,” and that the evidence must be limited to a “reputation for quarrelsomeness.” Testimony of witnesses tending to show defendant’s reputation in this respect was admitted at that time, although there would be no more materiality in reputation than in previous acts or violent conduct until some overt act of aggression towards defendant was established.
It is plain, therefore, that the court intended to rule finally on the admissibility of the; offered evidence with reference to defendant’s violent conduct preceding the affray, assuming that there would be evidence introduced of aggression on his part; and counsel for defendant were justi ed in accepting this as a final ruling, and in refraining from making further offer of the same evidence after the circumstances of the affray had been established.
As tbe error in rejecting the offered evidence necessitates a reversal, it is not necessary to discuss other assignments, relating to questions not likely to arise on another trial of the case. The case is remanded for a new trial.— Reversed.