169 Iowa 171 | Iowa | 1915
It is practically conceded that the verdict has support in the testimony, and the errors relied upon for a reversal relate to the instructions given and refused, and to alleged misconduct of counsel for the State.
Deceased was defendant’s father, and the homicide grew out of an altercation at the father’s home, and defendant contends that the shooting was due to an assault made by deceased upon his mother and was in defense of her person. Deceased was a conductor in the employ of the Minneapolis & St. Louis Railway Co., and was at home on the day of the affray resting up and getting ready for his next run, the train he was to take leaving Oskaloosa about six o’clock in the evening of the day he was killed. He did not get along well with his wife, and they often quarreled with each other. Just prior to the homicide, which occurred some time during the middle of the afternoon, deceased had been resting in his bedroom on the second floor of the house, and he came downstairs with his wife. He was angry when he came down, and shortly after getting to the lower story he threatened to kill his wife, and declared he would shoot her "right away.” Deceased then took a chair and attempted to lace his shoes.
In the meantime defendant, without the knowledge of either parent, came down from the upper story of the house.
Defendant claims, and his mother gave testimony tending to show, that at the time of the shooting deceased was chasing his wife around the room; that he was armed with an old razor which he was threatening to use; and that to protect the mother, defendant shot him, and as a result he (deceased) backed up and sat down in the chair near which he was found; that before the second shot was fired he raised up and turned toward the bathroom door where defendant was standing, and was in the act of attacking defendant with his razor.
The only eyewitness, aside from the defendant, who was not on the witness stand, was the mother, who thus explained the transaction:
“My husband returned home about 3 o’clock that afternoon. I was in the sewing-room when he came home and Chattie was in there also, with my baby. My husband came upstairs and stopped at the sewing-room door and looked' at me and then went in the southeast room. After he went in there he lay on the bed I guess; anyway my son and he were talking together there for about twenty minutes. I was not in the room at that time and do not know what they were talking about. My husband called Bertha, and I got up and went right to the door, just to the door. He raised up out of the bed, pointed his finger at me and said, ‘God damn you, whó aré your lawyers?’ I said, ‘Why, Will,- what do you*175 mean, I have no lawyers. ’ He said, ‘ God damn your soul, you have, and you have got to tell me, and tell me who they are mighty quick.’ I tried to reason with him that I had no lawyers; that I was not to see a lawyer at any time. He would Hot reason or listen; he threatened to kill me, and started to get up out of bed. He started towards me and turned and started towards the stairway to go downstairs. My son Chattie did not say anything to my husband at all. I started downstairs and Mr. Nicola followed me within six or eight feet. I went downstairs into the reception room, and he followed me there. I went into the kitchen — just went inside the kitchen door and he stood there and threatened me. I still kept trying to reason with him to make him understand that I hadn’t seen any lawyers; he wouldn’t reason, he wouldn’t listen; he kept threatening me there at the kitchen door. I came back into the dining-room and he said, ‘ There, I have a gun loaded ready for you, and God damn your soul, I want you to tell me and tell me -quick who your lawyers are.’ I came back out of the kitchen into the dining-room and he closed the kitchen door and crossed over and sat down in a chair, still making threats as he went. He sat down in a chair, and dropped his head for a second, and then stooped over and started to lace his shoes, but he did not finish; he raised up and said: ‘God damn your soul,’ he said, ‘I will-kill you.’ He said, ‘I have got to do it, and damn your soul I will do it now.’ After he raised from the chair he put his hand into his pocket and it looked like he had hold of a revolver. He raised up and came two or three steps toward me. I screamed to Chattie for help, that father was going to kill me. Just then I heard a report. He turned just so and fell back into the chair. He raised again with the same vicious look, jammed one hand in his pocket, and the other hand clinched and his teeth clinched. He turned on Chattie and then a second re-, port. Chatty came around in front of his father and burst out crying and said to his father, ‘See what you have compelled me to do.’ He says, ‘I did it to save mother; are you. sorry?’ And his father nodded his head twice.”
I. Defendant asked the following instructions:
“43. If you find from the evidence that William Nicola, the deceased, prior to the tragedy made any threats against his wife, Bertha Nicola, then such threat or threats, if any, should be considered by you as explaining the conduct or apprehension of said defendant, if any, at the time of such killing.
“45. You are instructed that you may consider, in determining as to whether the defendant had reasonable grounds for believing that his mother, Bertha Nicola, was in an imminent danger of death or great personal injury from the deceased, prior to the shooting had made threats to the said Bertha Nicola that he would bill or injure her. ’ ’
The only instruction given by the trial court referring to these threats, was as follows:
“28. You are instructéd that if you find from the evidence that the deceased, William Nicola, had threatened to •
We do not think the instruction given met the propositions involved in the requests; and it is practically conceded that the latter announced correct propositions of law. If not conceded, it is well settled that they are correct expositions of the law of self-defense. State v. Beird, 118 Iowa 474, 478; People v. Zigouras, 57 N. E. (N. Y.) 465; State v. Petsch, 20 S. B. (S. Car.) 993.
II. Defendant also asked the court to instruct as follows:
“44. If you believe that at the time of the attack, if any, of the deceased upon his wife, which reasonably appeared to the defendant, that the purpose was either to kill or do her serious bodily injury then, if you so believe, defendant would have the lawful right to defend her from such attack; and, if defendant commenced to shoot under such circumstances, you are instructed that he would have the right to continue shooting at deceased, until it reasonably appeared to him, from his standpoint, that she was out of danger from such unlawful attack.”
Nothing of this character was given. The instruction was correct and should have been given as requested. Kelly v. State, 62 S. W. (Tex.) 915.
Much, was made by the State, of course, of the firing of the second shot, and an instruction upon the subject was quite essential in order that the jury might be advised as to the bearing of this evidence upon defendant’s right of self-defense. Defendant contended and introduced evidence to show that the first shot was not likely to result in immediate death, and testimony was offered tending to show that deceased did not cease his assault until after the second shot was fired. It was for the jury to settle any dispute in the testimony with respect to this and to apply the law to the facts as found.
The qualification of this instruction regarding warning to the deceased is complained of, and we think the complaint is well founded. It was not necessary as a matter of law for defendant to have warned the deceased before firing the fatal shot; and if a warning might be necessary, it was only in the event that it appeared to the defendant, as a reasonably prudent and cautious person, that such warning would have been all that was necessary to save the mother from harm. Such a warning as is referred to in the instruction necessarily had reference to whether or not defendant might have saved his mother by some other means than taking the life of her assailant.
A warning before shooting was not required, as a matter of law; and under no circumstances, save as it reasonably appeared to defendant that by so doing he might have avoided the necessity of taking life. The qualification was likely to confuse the jury, and it was really inconsistent with what preceded. From any standpoint it was, as we think,
“There is another thing in this case that the defendant has not denied and that is the writing of the letter to his brother on the day on which he killed his father.”
The defendant’s counsel objected, as shown, and the court made the following record thereon:
‘ ‘ Counsel for the defendant except to the statement just made by counsel for the State in regard to the defendant not denying as prejudicial.
Court: ‘ ‘ The county attorney is advised not to make any reference to the failure to testify on the part of the defendant and any remark of counsel in regard to that should not be considered by the jury; and you, gentlemen, are advised not to consider anything said in respect to the failure of the defendant to testify.
Mr. McCutcheon: “What I meant, gentlemen, is that the attorneys for the defendant have not denied the writing of this letter to Des Moines. Objections and exceptions to court’s instructions. ’ ’
Code Sec. 5484 reads as follows: “Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state; and should a defendant not elect' to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state during the trial refer to the fact that the defendant did not testify in his own behalf; and should they do so, such attorney or attorneys will be guilty of a misdemeanor,, and defendant shall, for that cause alone be entitled to a new trial.”
In the cases relied upon by the State, there was no direct reference, -as here, to defendant’s failure to deny. Vide. State v. Seely, 92 Iowa 488, 490; State v. Snider, 119 Iowa 15; State v. Hasty, 121 Iowa 507; State v. Baker, 143 Iowa 224; State v. Krampe, 161 Iowa 48; State v. Davis, 110 Iowa 746.
In addition to the two eases already cited in support of this opinion, the following sustain the holding that the remarks in the instant case were within the inhibition of the statute. State v. Graham, 62 Iowa 108; State v. Ryan, 70 Iowa 154.
In no case have we held that a direct reference to defendant’s failure to testify upon the witness stand is not within the prohibition of the statute. A new trial should have been granted on this ground alone.
VI. 'Other matters are argued, but they are either without merit or will not arise upon a retrial. But for the errors pointed out, the judgment must be reversed and the cause remanded for another trial. — Reversed and Remanded.