44 Iowa 104 | Iowa | 1876
The undisputed facts are: The defendant and Chancey, Brady and others were in Williams’ saloon on the night of the homicide. Brady, being noisy and intoxicated, was requested to leave the house, which he did, and the others followed him. Yery shortly thereafter, the deceased and Brady got into an altercation on the street. The deceased charged that Brady had broken his windows and insulted some women, which Brady denied. The deceased took hold of Brady, who was fifty-seven years old, and endeavored to pull him along the street for the avowed purpose of showing him the broken windows. There was quite a crowd around, among whom were the defendant and Chancey. During the altercation between Brady and the deceased, the former called the latter a liar, whereupon the deceased struck Brady over the head with an unironed single tree and knocked him down and insensible, and he so remained until the next morning. The blow was a-glancing one; had it been direct, it might have
A witness testifies that TIarmon had hold of the stick at the time he told the defendant and Chancey to let Shea have it, but in no other respect does his evidence differ from that above stated.
The testimony tends to show that the deceased.was hunting for Brady with the intent of having a difficulty with him, and that all these persons had been drinking, and at least some of them were intoxicated.
The defendant established a good character.
The errors relied on will be considered in their order.
I. Instruction No. 8, given by the court, is objected to, and is as follows:
It is urged this instruction lays down the rule that, in order to acquit, the jury must find the “assault was accidental or upon sufficient justification, or that it was made by Chancey and the defendant' did not aid or abet its commission.” “ Whereas, the jury should have been instructed, that if they had any reasonable doubts on these points, it was their duty to acquit;” and that the instruction was erroneous because inapplicable to the facts.
In a previous instruction the court said to the jury:
“ 2. To this charge the defendant has pleaded ‘ not guilty,’ and this plea puts in issue every material allegation contained in the indictment, and before the State can ask a conviction, it must have satisfied you by the evidence, beyond a reasonable doubt, of the truth of each material allegation substantially as alleged.”
Why the instruction is not applicable to the testimony is not stated, and we confess our inability to imagine why it is not. “ ■ '
II. The following instruction was given:
The objections to this instruction can be best stated in the language of counsel:
“Instruction No. 13 is erroneous to the prejudice of defendant, for the reason that it had a tendency to mislead the jury under the facts of the case, by instructing them that the right of defendant to interfere and resist a felonious assault upon Brady, would furnish him no justification whatever for sub
1. It depends upon when the assault was made by the defendant whether it was justifiable or not for the protection of Brady. The deceased assaulted Brady, and the defendant interposed under the belief, it may be, that unless he did so, the assault would be continued. All danger of any further assault on Brady was at an end.. He was lying on the ground insensible, and the deceased, defendant and Chancey were two hundred feet distant from where deceased assaulted Brady at the time Chancey or defendant assaulted the deceased. Admitting that having taken hold of the stick and Shea, neither the defendant or Chancey could let go with safety _ so far as the protection of Brady was concerned, and that the first blow struck by Chancey was justifiable, there was no -necessity for the protection of Brady that defendant should run after Shea and again strike him; such assault was wholly unjustifiable as a protection to Brady from any further assault by the deceased.
If the instruction amounts to a direction to find defendant guilty, if the jury found the enumerated facts to be true, it is not the fault of the law, as laid down by the court, but because of the existence of facts which made it the imperative duty of the court to so lay down the law. We have no hesitation in holding that the subsequent assault was “wholly unjustifiable for the protection of Brady.”
2. It is urged this instruction should have been qualified by the thought “unless such killing was necessary to save the life of defendant or his person from great and iminent peril.”
It .will be readily seen this instruction has no reference to
III. The 14th instruction is as follows:
That the defendant and Chancey committed a joint assault on the deceased is perfectly clear. They both seized hold of him, and if it bq admitted this was justifiable by reason of the assault on Brady, and that afterwards and up to the time
It is a mistake to suppose the instruction is based on the theory that defendant killed Shea. This, it is true, is submitted to the jury for them to find as a fact. Nor is it true it.assmnes the defendant struck the blow with the stick or club which most likely caused the death; nothing is said on this subject. The instruction, as a whole, was evidently given in the interest and for the benefit of the defendant, and is much more favorable to him than under the facts he was entitled to.
“If you find that defendant jointly with one John Ohancey attempted to wrest a club from the hands of the deceased and they‘were acting together, the one directing the other; that immediately after obtaining the club the defendant started after the deceased, being closely followed by the said Ohancey who held the club, that defendant first reached the deceased and immediately commenced beating deceased with his fists, that as soon as Ohancey reached the deceased he commenced, .with the knowledge of defendant, to beat deceased with the club which they had jointly wrested from the hands of the deceased, that defendant, after blows had been inflicted with the club' by Ohancey, either continued to strike deceased or attempted to kick him, such facts would warrant you in finding that defendant aided and abetted said Ohancey. Upon this question as upon all others, you are to exercise reason and good common sense, and judge the defendant and his acts in the light of your knowledge of human nature and those motives which actuate and call into being the various movements of mankind and influence men in their conduct.”
It is said there wras no evidence showing that the defendant struck the deceased with his fist after Ohancey struck with the stick, and hence it is urged the instruction was calculated to mislead the jury.
There was evidence tending to show that defendant, as Shea “ fell, kicked him one or two times.” We are at a loss to know how the instruction by any possibility could mislead
It is urged that if the defendant struck the deceased with his fists only, he would not be liable. • Certainly it is not intended by this that he must have had hold of the club at the time the fatal blow was struck, or that he must have known that Ohancey intended to strike such a blow. If he and Ohancey engaged in an assault and aided each other therein, each is responsible for whatever was done by the other, and also for the consequences resulting therefrom. The State v. Farr, 33 Iowa, 553, does not conflict with this rule. In that case there was no evidence that defendant participated in the act which caused the death. The defendant and the person who did the shooting came together, but no felonious intent even was shown. All that could be said was that he was present. The facts in the two cases are so materially different that no rule laid down in one would be applicable to the other.
Y. After the jury had been considéring as to their verdict for thirty hours, the court gave them the following instruction:
“ Gentlemen of the j ury, as to what and who are aiders and abettors, you are further instructed as follows:
This instruction is objected to because it is in conflict with The State v. Farr, supra. In this we do not concur, for the reasons already briefly given. It is next urged the instruction in effect directs the jury that it was not necessary that defendant assisted in striking, or “ that he knew or supposed Chancey would strike or was going to strike.” But such is not the law, if, as the instruction states the rule, “ they were acting together in making an unlawful assault.” Under the facts, as heretofore shown, the instruction fairly and pertinently states the law.
VI. The instructions asked by the defendant were properly refused. They were either inapplicable or contained an incorrect statement of the law, or were embraced in those given by the court.
Having approved the instructions given, it follows where those asked and refused conflict therewith they contain an incorrect statement of the law.
The modification of instruction No. 9 is objected to for the reason that the modification “ does not correctly state the law of the case.” A careful examination of the instruction as modified fails to disclose wherein the law is stated incorrectly. The length of this opinion forbids the setting out of these instructions, or a statement of the reasons influencing us as to the conclusions reached at greater length.
The proposed evidence was properly rejected. The abstract fails to state by whom the transcript was made. Besides this, 'the original notes should have been produced, or a sufficient showing made why they were not.' At the conclusion of the rebutting testimony, the defendant moved the court that a recess b.e taken, or court adjourned until the arrival of the next train with the reporter and the original notes of such testimony. This the court refused to do. This was clearly a matter of discretion, and there are no facts before us which will warrant us in finding that such discretion was abused.
IX.' It is lastly urged the verdict is contrary to the evidence, and that the punishment is too great. Without undertaking to set out the evidence any more fully than has been done, we deem it sufficient to say that, in our opinion, the verdict is clearly, sustained by the evidence. The defendant was sentenced to be imprisoned in the penitentiary for the term of nineteen years. The evidence with great certainty points to Chancey as the person who struck the fatal blow. His punishment was reduced by us to ten years for reasons indicated in the judgment. We are, therefore, of the opinion that the defendant should not be imprisoned in the penitentiary for a period longer than ten years, to date from the time judgment was pronounced by the District Court. The sentence of the District Court should have been for ten instead of nineteen years, such being the minimum punishment fixed by statute, and judgment is accordingly entered in this court.
Affirmed.