119 Iowa 688 | Iowa | 1903
On the night of December 18, 1901, an alleged tramp, named Oscar Miller, was struck several blows upon the head by some blunt instrument, from the effects of which he died on January 2, 1902. The--crime was committed in a small house,-uséd for storing sand, situated near the Wabash Railroad station in Shenandoah, Page county. Upon the trial the state was allowed to introduce, over the objection of defendant, what purported to be a dying declaration' signed by Miller5 bn December 28, 1901. It is now urged that the admission of such declaration in evidence was error.
Having before us the rule of law governing the subject-matter,'’ we now turn to the record to ascertain the facts upon which the ruling complained of was based. When found on the morning of December 19th, Miller was lying in the open door of the sandhouse. He was unconscious, and remained so for several days thereafter. He steadily grew weaker down to the time of his death. He was advised by his physician concerning the character of
Such, in brief, are the facts, in addition to those we have already stated, which the jury was warranted in finding had been established. As we have said in another division of this.opinion, it was the theory of the state that Dennis and his associates had resolved upon and consiiired together to make an assault upon Davis; that they evidently believed he would go to the sandhouse during the night for some purpose — possibly to replenish the fire— and that being there they would follow him in, and act upon their resolve; that, seeing Miller enter, and supposing him to be Davis, they proceeded to carry out their plan, which resulted in the death of Miller. The jury, having found the facts to be as stated, accepted,the theory advanced by counsel for the sta¡f;e, and came in with a verdict of murder in the second degree. Such being the state of the record before us, we reach without difficulty the conclusion that the verdict was warranted by the evidence, and should not, therefore, be disturbed. That the intended victim was a person other than the deceased is, of course, immaterial. If the purpose and pl.an was to injure or kill some one, it matters not that a mistake was made in the identity of the person actually assaulted. This is elementary.
We have carefully read the entire record, and we find no error. The judgment is therefore aeeirmed.