162 Iowa 597 | Iowa | 1913
Defendant is charged with having shot and killed one Henry Porter. The killing is said to have occurred in a public highway, a short distance from the town of Hamburg, in Freemont county, Iowa, on the 20th day of Decern
Just as I turned the corner he (deceased) hollered ‘Halt.’*600 I said, ‘I want to see yon a minute. ’ . . . And just then I said, ‘I want to see you a minute,’ and just as I said that he commenced shooting. I thought I was shot, and I grabbed my gun and commenced shooting. I was struck twice, I thought. ... I shot five times. He shot five times. "We exchanged ten shots. He shot me twice before I could answer, and I kept shooting until I was empty and he had to. I couldn’t say that I saw Porter fall. He disappeared, but I couldn’t tell whether he fell or not.
The case was tried by the state upon the theory that, after the defendant had emptied his revolver in shooting at the deceased and had killed him, he took the revolver that, was in the deceased’s possession, fired one shot into the dead body and the other at the body, and threw the revolver down in front of the deceased, to leave the impression with any one who might find him that the shooting was done in self-defense; and the defendant claimed on the trial that he did the shooting in defense of his person, as is indicated in the quotation from his testimony above set out. This is a sufficient statement of the facts to an understanding of the questions presented.
He [defendant] wasn’t going out there because he believed that this man, in the presence of the mother and in the presence of the two younger sisters, would hold improper relations with Pearl, but he was going out there because down in his heart there was a hatred of this man because he paid attentions to the divorced wife. ... I think I am fair about the statement that there is no word of mouth in this case, nowhere from no witness, not even from Henry Johnson himself, who was upon the witness stand for a day and a half, nearly, of any man that ever saw Henry Porter paying any attention to the daughter Pearl. . . . Johnson didn’t say he had ever seen this man with Pearl, because he knew it wasn’t true, and he knew that if he told that which was untrue a dozen witnesses whom he had not time to remove from the jurisdiction of this court could come upon the stand and testify.
It was hardly fair, to say the least, for counsel to make such claim in argument after securing a ruling which prevented defendant from making the showing referred to. In
Q. . . . You may state whether you had, prior to the time, been told that Mr. Porter had been getting buggies there ?
Mr. Eaton: This is objected to as incompetent and immaterial.
The Court: There isn’t any material issue in this case about him going to the livery barn. Excepted to.
Q. You may state whether you had been told that Mr. Porter had been getting buggies at -the livery barn, and had been taking your daughter Pearl out? A. Yes, sir.
Mr. Eaton: That is objected to as incompetent, immaterial and irrelevant.
The Court: Sustained, and the answer may go out.
Tested by these rules there was no conflict, and the instructions taken as a whole fully covered the case. The only doubt we have is of the correctness of the sixteenth instruction, which reads as follows:
In murder of the first degree, unless the act is done in the perpetration or attempt to perpetrate arson, rape, robbery, mayhem, or burglary, there must be a specific intention to kill, in doing the act which causes death, and the killing must be deliberate and premeditated, but these elements are not essen*604 tial to murder of the second degree. If one person, without provocation — that is, with malice — shoot another with intention to inflict upon him some serious bodily harm, and the act goes beyond the intention, and causes the death of the person assailed, the one who fired the shot is guilty of murder in the' second degree; and it would make no difference in this respect that at the time the act was done there was no intention to take the life of the deceased.
For the errors pointed out, the judgment must be reversed, and the case remanded for a new trial.
Beversed and Bemanded.