19 Iowa 447 | Iowa | 1865
. The seventh instruction asserted that malice did not, in such a ease as this, “necessarily mean spite or hatred, although these elements may exist; but it means the doing of an act, wrongful in itself, without just cause or excuse.”
The fifteenth and sixteenth instructions simply directed' the jury to consider these principles in determining their verdict, and if this should be one of guilty, the degree of the offense.
That these directions to the jury were applicable to the testimony is not disputed. That they conform to the law as settled in the courts of England, and of this country, requires no elaboration to show. They not only express the law, but they express it with but little verbal, and without essential variation from the language of the accepted authorities and text books in reference to this subject, and in language which, in substance, has been more than once employed in the published judgments of this court. The State v. Gillick, 7 Iowa, 287; 1 Hale, 454; Kel., 64; 1 Russell on Crime, 482.
The killing, in the case at bar, was by the intentional use of a loaded revolver, discharged into the breast of the deceased. It was entirely correct for the court to state to the jury, that malice might properly be inferred from the' use of such a weapon, unless the circumstances in evidence ■ rebutted such an inference.
That instruction was in this wise: “You should endeavor to move forward in the discharge of this duty without hesitation,, fear or favor, let the result and its consequences be what they may. The good of society requires that crime should be surely and promptly punished. No considerations of sympathy or excessive kindness should for a moment deter you from finding the defendant guilty, if you are satisfied from the testimony, beyond a reasonable doubt, that he is so guilty.” The next instruction was thus: “ On the other hand, you are to be uninfluenced by any excitement or prejudice in the community, which has less reliable knowledge of the facts and less legal and moral responsibility than you have, acting upon oath. The vast importance to the defendant, of the result of your deliberations, should alone prompt you to a careful and full investigation of the whole case, actuated by but one motive, that of doing entire justice under the evidence, and the law as given you by the court.”
These instructions are, of course, to be taken together. We perceive no objection to them. They are certainly not obnoxious to the criticism of containing an argument against the defendant, nor are they calculated to mislead the jury. We will suppose, indeed it is our duty to suppose, that they were called for by the special circumstances which surrounded the case. At all events, they simply enjoin upon the jury a full, careful, conscientious consideration of the case, and a manly discharge of their duty; and are, in trials of such magnitude, entirely proper. The State of Iowa v. Vance, 17 Iowa, 138, and the observations of Wright, Ch. J.
The unsoundness of the proposition prayed to be given to the j ury can be briefly illustrated. Suppose I shoot at a person or strike at him, with the specific intention to maim him, or do him great bodily injury, but the unlawful shot or blow, instead of accomplishing or effecting my purpose, goes beyond it, or beside it, and takes his life. Unless there are some justifying or mitigating circumstances, I am guilty of murder; but it is murder of the second degree, and I am thus guiAty, though there was no intention on my part to take life. Fost., 258, 569; 1 Rus., 540; Whart., 379, and authorities cited; Commonwealth v. Varney, 8 Bost. L. R., 542, per Sheply, J., cited Whart., 484; State of Iowa v. Kennedy, 20 Iowa.
It is better, but we do not say that it is necessary, for the defendant to be present in person upon the argument' of a motion for a new trial. See Rev. §§ 4681, 4706, 4826, ,4854, 4863. Indeed our inclination would be to hold that this is not a right which the statute secures to him; that the trial contemplated by section 4706, ends with the rendition of a verdict.
T. Finally, it is urged that the verdict is against the weight of evidence.
That the defendant killed the deceased is not denied. It was claimed by the defendant, upon the trial, that the killing was excusable homicide, because done in self-defense, or in the defense of his property and home. Upon any view of the evidence, even taking the evidence adduced by the defendant, this theory is wholly inadmissible.
The only doubt which could exist would be, whether the real offense was, as the jury found, murder in the
Akers had no weapons of any kind, and he and the defendant were about the same size, “jádter the defendant shot, I heard him say, ‘ I told you that is the way I do.’ ” Kolce (one of the associates of the deceased) testified, 'among other things, “I first saw the pistol in the defendant’s hand ; he reached across the counter by making two ■ or three motions, and leveled his aim two or three times so as to bring it level. Akers was three feet from the counter; the counter was eighteen inches wide, and the defendant was behind the counter when the shot was fired.”
Mrs. Decklotts testified that the deceased did steal a tumbler and put it in his pocket; that the door was locked when the party returned; that deceased and his party (except Hunter) broke the lower bolt and forced their way in; that Akers first commenced about the tumbler; that defendant did not accuse him of stealing it, but simply said it was gone; that somebody had it. Akers then struck at the defendant and hit his arm or shoulder, pulled off his
Some of the State’s witnesses deny that there were any blows passed prior to the shooting. It was proved that the defendant was accustomed to keep the pistol behind a glass inside of the counter.
What is reasonable or adequate provocation, which in such cases is taken to extenuate the killing from murder to manslaughter, is a question upon which it is obvious, different opinions will, in many instances, be entertained.
But if we should regard it as established, that the deceased and his party had threatened violence against the defendant; had forced open his house to provoke a contest; that defendant believed that the deceased, in any contest with him, could rely upon the sympathy and aid of his companions, and that they were sufficient to overpower him and his 'friends; that the defendant, when he shot, also believed that the deceased was reaching in his bosom for a weapon, and that he thereupon shot instinctively and not deliberately, the pistol lying there and not having been purposely provided, these circumstances, in connection with the insolent behavior of the deceased, would go very far toward, if, indeed, they would not be sufficient, to reduce the offense to manslaughter.
Under instructions which laid down the law correctly, but not as fully or as pointedly as would be desirable, the jury have found the offense to be murder in the second degree, and not manslaughter. Taking the whole evidence together, we think this was a correct conclusion. The danger to the defendant was really nothing, and was not even apparently imminent and great. His use of a loaded pistol, under these circumstances, aimed at the breast of the deceased, the natural result of which would be to take life or inflict great bodily injury, indicates very strongly that this was his intention, especially if the testimony of his deliberateness of aim be' credited, and if so, the offense is murder.
The occurrence is truly a most unfortunate one. The conduct of the deceased was highly blameworthy. He it was that provoked the difficulty, instigated, doubtless, by the liquor which he drank, and to the use of which he became a victim. The only mitigation his conduct finds, if it finds it at all, is in the fact that he was intoxicated, and in part by liquor sold to him by the defendant. It would not do to hold that a saloon keeper may sell another that which steals away his senses, overthrows his judgment and clouds his reason, makes him boisterous, quarrelsome, and offensive, and then, himself being in no serious danger, shoot him dead because he is unreasonable, insulting and quarrelsome.
Still, there are many circumstances, some of which have been mentioned and some not, which should induce a somewhat lenient consideration of the defendant’s case. Considering these, and the possible doubt, which, in one view of the case, might exist as to the grade of the offense, the court has deemed it proper, though reluctant, to interfere with the quantum of punishment imposed by the court below, to reduce the imprisonment from sixteen years to ten, the maximum punishment for manslaughter, and probably sufficient, under the circumstances, ev.en assuming the verdict, as to the degree of guilt, to be correct.
With this modification the judgment below is
Affirmed.