189 Iowa 474 | Iowa | 1920
1. The State’s evidence is not denied by witnesses for the defendant. The only witnesses for defendant were a photographer ivho testified as to photographs taken by him and measurements of the upstairs rooms where the shooting took place and the distance from the building to the alley, which was 67 feet, and four witnesses under and with whom defendant worked in the roundhouse and shops, who testified as to his character for peaceableness.
At the outset, it may be well to describe the premises and the surroundings, in view of some of the questions argued. This may be more conveniently done by the plat, which is as follows:
As ire understand the evidence. Maple Street is to the east, and the alley to the Avest. Mrs. Enos lived a short distance south. She Avas the mother of the Avife of deceased. Evidently, the shooting took place in the southeast bedroom, “G.” Such is the claim. The rooms are small. After the shooting, Parios was seen hanging to the bannister, and Mrs. Enos Ai'ent to him, and soon after, he Avas helped by his Avife to the Enos yard, AAdiere he died. Tt is not shoAvn aaíio avus in possession of or aat1io occupied the rooms Avhere the trouble occurred. Deceased and his Avife at one time lii-ed in the basement of the Enos place, but. at the time of the killing, they had been living in a box car. As AAre understand it, the railroad yards are not far from this property. There is a board fence betAAreen the Enos residence and the premises Avhere the shooting took place,-so that, to go to the deceased, Mrs. Enos had to go by the street or the alley. She went by the alley. In the plat, “A” is the platform upon Avliich Parios stood Avhen first seen by Mrs. Enos. “B” represents the door with glass panels, through which Mrs. Enos says she heard Parios talking in Greek to someone on the inside. The nature of the conversation is not disclosed. There were not many Avords spoken. The kitchen, “G,” is connected with the trunk room, “E,” by the door, “D.” The trunk room, “E,” Avas connected Avith the bedroom, “G,” by the door, “F,” which swung east, as indicated. There avus no lock on this
At about 7 o’clock on the niorning of September 30th, Eluis Parios, wife of deceased, came into the home of her mother, Mrs. Enos, and left a small package, supposed to contain a lunch, on the cupboard, and left the room. Some time after this, within the next 45 minutes, as appellant contends, — though the time is not definitely fixed, — Mrs. Enos went outdoors to get water to use in combing her little girl’s hair. She ivas getting her child ready for school. While she was in the back yard, deceased called to Mrs. Enos from the top of the stairs shown in the plat, and said, “Ma, come up here, and see for yourself.” This was the first time deceased was seen that morning by any of the witnesses. Whether he came out of this upstairs apartment, or from some other place, does not appear. Mrs. Enos went to the stairway by way of the alley. At about the time she started from her home, or while on the way, she heard a sound like the crashing of glass. On reaching the top of the stairs, she saw deceased with a chair in his hand. He had smashed the door “B.” When Mrs. Enos arrived at the landing, or at about that time, she heard the talking be
“I saw her in the second room when he broke the second door open. I saw Mrs. Parios in front of the second door; it was from the kitchen side in front of it.”
She testifies she did not see the defendant there at that time, or anybody except Parios and the girl. After deceased entered the trunk room, he passed from Mrs. Enos’ sight; for she says she then turned and started to go out and downstairs. She went directly down the stairs, and-went right along till she got to her own yard. The shooting took place after she started to go down the stairway. She testifies that, when she got to the bottom of the stairs, Mrs. Parios was there with her, and Mrs. Enos went on around to her own yard, she says, to look after her little sick girl in the house. She came out of' the house, and saw Parios hanging to the stairway, the bannister. He said for her to bring him water. She took the wash dish, and went out with it, full of water, to bathe his face. Mrs. Parios had assisted deceased from the stairway to Mrs. Enos’ yard. Mrs. Enos says that she saw deceased lying in the yard; that she saw no other person in the yard at that time, except Mr. and Mrs. Parios and the folks that lived next door; that she was excited. She was looking at his, Parios’, features, when he was lying in the yard. At that time, she says she saw a man running, with a gun in his hands.
“Q. Who was the man? A. Nick Christ. Q. Is this the man you saw, that is sitting here in the court room? A. Yes, sir. Q. Where did he go? A. He went between the two buildings, and that is the last I seen of him.”
She did not see him come down the stairs. When she first saw him, he was running, running in the yard. With
“I think it Avas this defendant. Q. But you are not certain, are you, Mrs. Enos? You onty think so, isn’t that it? Isn’t it a fact that you only think so? A. Well, I don’t remember, but I think it Avas.”
On re-examination, she Avas asked Avhether defendant Avas the man, and she said, “Yes, sir, I saAV him running, Avith a gun in his hand.” A search Avas made for Nick Christ by the police. On the second day of October, in company AAdth Judge Bonson and an attorney from Chicago, he appeared at the police station, and gave himself into the custody of the police. The coroner examined the premises at about 8 o’clock. He seems to have been the first one, after the death of Parios. He says there Avas a table in the kitchen, AAdiich shoAved that somebody had recently been having breakfast. There Avere cups and saucers, a fork, and a common kitchen knife on the table, and some chairs in the .room. The cook stove Avas still Avarm. He did not see a butcher knife or a pocket knife. There Avere some trunks and clothes in the trunk room. He then AArent into the bedroom, “G;” The bed looked as though it had been occupied that night. He noticed a Avet spot in the bed. On the table in this room AA^ere tivo glasses. One had sonie beer in it. There was also a pint bottle, partly filled Avitli Avhisky, and some empty beer bottles. He says he made a careful examination. The chief of police visited the rooms about 8:30 o’clock that morning. He testifies that, Avhen he Avent there, he suav a butclier knife, a pocket knife, and a table knife on the table. It is argued by appellant that there is no evidence Avhich connects the defendant with the offense, except the testimony of Mrs. Enos, and that her identification of
“There is no rule of law which requires a witness to be absolutely positive in his statement of fact. The positive witness ■ is often entitled to less consideration than • the more cautious.”
See, also, Abbott v. Church, 288 Ill. 91. (123 N. E. 306, 4 A. L. R. 975, and note).
The weight of the evidence of this witness was for the jury, and sufficient, if they believed her. In addition to this, the defendant’s fleeing hurriedly from the scene, with a gun in his hand, and passing near the deceased lying on the ground in a helpless condition, and defendant’s concealment, were proper circumstances, with others, to be considered by the jury as indicating guilt. It may be true that no person directly charged defendant with the commission of the crime as a reason for flight, but the circumstances just related, and all the circumstances, in the case, were such as to charge him therewith: that is, from them, he had reason to believe he would be apprehended as the perpetrator of the crime. Flight has been held to be prima facie indicative of guilt. State v. O’Callaghan, 157 Iowa 545, 554. We do not understand appellant to complain of the law as laid down by the court in regard to flight, except that they contend that there is no evidence of flight. It is further contended by appellant that the witness Mrs. Enos was not asked by the State to describe the kind of a gun she saw defendant have. The argument is that it may have been a shotgun, and that it should be shown that the gun was such a one as the bullets indicated was used. It could readily have been shown what kind of a gun it was, by simply asking the witness. Under defendant’s theory, it
“The failure of the State to produce all witnesses who testified before the grand jury is not a wrong, and creates no presumption of wrong.”
4. In connection with the last proposition, the defend
5. The indictment charged murder in the first degree. The trial court said,'in one of its instructions:
4. Criminal Law : suggesting’ conviction on former trial. “That, by reason of a former trial, the defendant in this case cannot be tried or convicted for the crime of murder in the first degree, and you should in no manner consider the offense of murder in the first degree.”
The court instructed in regard to murder in the second degree and manslaughter. Appellant contends that this instruction was error, because it indirectly and inferentially told the jury that, on the former trial, defendant had been convicted of murder in the second degree. The facts in regard to the former trial -and the alleged conviction are not pointed out in argument, and we do not find that there is any evidence in regard to this. We assume, from the arguments, that there was a prior conviction for second-degree murder, and a new trial granted for some reason. From the language' used, a jury would not be likely to infer that defendant had been convicted of second-degree murder. We are unable to determine from the record just how the attention of the court ivas called to the matter, or whether he took notice of it himself. No complaint is made, of course, that the court did not submit the question of first-degree murder to the jury. It is possible that the court could have used some other language, such as that, under the record, the jury should not consider first-degree murder. But, after all, it was a matter of defense for the defendant
“Ma, come up here and see for yourself.” It argued that.the statement was not made }n presence of the defendant, and is not binding upon him, and that it is not a part of the res gestae. There is no testimony in the record, unless it be by inference, as to what deceased wanted his mother-in-law to see. The record is:
“There was nothing else that occurred that attracted my attention particularly on that morning, after she [Mrs. Parios] left, only her husband calling me up. Q. Just tell us how that was, and what was done at that time. A. Well, he says, 'Ma, come up here and see for yourself,’ and I went up.
“Mr. G-illoon: We move that the answer be stricken out, unless it was in the presence of the defendant, as not binding on him, — I mean, in the presence a.nd hearing of the defendant. We object to the question for the same reason.
“Court: Overruled. (Exception.) ”
“We think the testimony Avas properly admitted as a part of the transaction Avhich led to the killing of Gathers. It explained, to some extent, his reason for being with Mrs. Peffers when the affray occurred, and Avas so far a part of the res gestae as to be competent. State v. Cross, 68 Iowa 186. It may be, as claimed, that it would naturally be inferred from the remark of Cathers that he had been*487 invited by Mrs. Peffers to follow her, but the jury had before them all the facts upon which the remark was based, and knew whether it was well founded.”
We think there ivas no error at this point.
By Instruction No. 9, in regard to circumstantial evidence, the court stated that there ivas no direct evidence,— that is, no evidence of eyewitnesses to the alleged shooting, — and that the State must rely upon circumstantial evidence. It is thought that this was erroneous, because there was an eyewitness, in the person of Mrs. Parios. This has been disposed of by prior discussion.
Instruction No. 10 is complained of, for that it is thought that it assumes that defendant did take the life of Parios. We do not so read the instruction. A sentence or clause is separated from the rest by the defendant, upon Avhich the argument is based. The subject of the instruction is that, if the jury find from the evidence, beyond a reasonable doubt, that defendant took the life of Parios, they should consider and determine Avhether or not, at the time, he was acting in self-defense, and that, in determining whether or not he was so acting in self-defense, the burden is' not upon the defendant to so slioAAr, but Avas upon the State to shoAV, beyond all reasonable doubt, that he Avas not acting in self-defense. Defendant Avas claiming self-defense at the trial, and is doing so here. We do not see how the court could have stated it differently. The court left it to the jury to determine Avhether defendant did take the life of Parios, and then stated the laAv of self-defense. Some of the later instructions are complained of, for that it is thought that the State Avas relieved of proving that defendant was not acting ifi self-defénse. The court had properly covered it once, and it Avas not necessary to repeat that statement in every other instruction on the subject.
After having left it to the jury to determine Avhether defendant did the shooting, — and the jury did so find, Avhich Avould necessarily be a finding that the person in the room Avith Avhom Parios Avas talking Avas the defendant,— the court said that no mere AVords would, justify the de
Instruction No. 18 does not assume that the defendant did the shooting. This instruction is on the question of intent, and the court, in at least two places, qualified his language by saying, “If you should find he committed the act.”1
“19. Malice, within the meaning of the law, includes not only hatred and ill will, but also any other unlawful or unjustifiable motive which inspires one person to injure another, and it may be inferred from the willful doing of an unlawful act, within just provocation or excuse, with intent to injure the person of another. It does not necessarily mean hatred or ill null, but may be simply a vicious and wanton disregard of another’s rights. Malice may be express or implied.
“20. Express malice may be shown by the exercise of such conduct in a transaction complained of as to indicate g wicked mind of malignant heart. Malice may be implied*491 from the unlawful use of a deadly weapon in a manner calculated to take the life .of another human being. A deadly weapon may be any instrument capable of producing death from the manner in which it is used in a given case.”
No instructions on this subject'were asked by the defendant, and it seems to us there-can be no just cause of complaint in regard to this matter.
In Instruction No. 23, the court told the jury that, if they should find from the evidence, beyond all reasonable doubt, that defendant was not acting in self-defense, and, using a revolver, assaulted deceased and shot him, and the deceased died as a result of the shooting, and there was malice aforethought, either express or implied, and so on, then, if the jury should so find, defendant would be guilty of murder in the second degree. We have not given it exactly as worded, because the only complaint is that it did not state upon whom the burden of proof rested; but the court had thoroughly stated that in previous instructions. This same complaint is made of other instructions.
It is said that Instruction No. 29, standing alone, assumes that the defendant is guilty of some crime charged in the indictment. This instruction has reference to motive. The instruction says no more than that, if the evidence fails to show any motive, or if it does, these are circumstances to be considered in making up the verdict.
The opinion is too long. We have considered some matters that perhaps do not really deserve attention. .There may be some other matters which have not been- noticed. All have been considered. After considering the whole case, we are of opinion, that no prejudicial error appears. The judgment is, therefore, — Affirmed.