167 Iowa 353 | Iowa | 1914
Defendant was accused of the murder of one Tony Yaki. Both deceased and defendant are Austrians, and were engaged in coal mining. On a Saturday night in the latter part of April, 1913, they met with fifty or sixty other people of their own race, at the home of Tony Tomsic, which we understand is in the town known as Buxton, to have a social dance, according to a common custom among these people. Refreshments were served during the evening. These included beer and perhaps other intoxicants. The party lasted all night, most of the guests remaining until daybreak. Some time early in the morning the deceased had an altercation with Louie Tomsic, a brother of the host, just outside the building, which defendant undertook to quell, and as he says, he, too, was attacked by deceased with a knife, and that in the altercation a coat which he had on was ripped open by Yaki with his knife. Yaki then retired from the scene, passing over or through a fence which marked the boundary line of Tomsic’s premises. It is claimed that as he went, or just after he got over th.e fence, Tomsic threw rocks at the deceased, one, at least, of which struck him (Yaki) in the back. Yaki then recrossed the fence and came back, either running or at a brisk walk, toward quite a crowd of people who had assembled outside the house and near a well, threatening, according to defendant’s version, to kill the first man he came to. Defendant also claims that at the time Yaki’s face and head were bloody, and that he had a knife in his hand. This is denied by witnesses for the state. According to their testimony, when Yaki came back through the fence, rocks were thrown at him, and that he said, “If you want to kill me, kill me.” At any rate,, as he approached the defendant he (the defendant) picked up a stick or board, and, as he approached to within a
A. It was not hard, nor it was not soft; it was a kind of pine wood. Q. A thin pine stick ? A. Yes, sir. Q. Do you know what became of that stick? A. Well, some one made a fire and threw it into the fire. I do not know who it was.
A witness for the defendant testified:
Q. About how long was the stick? A. 0, about this much [witness indicates]. Q. About how wide across? A. It would be about four inches. It was kind of thin at one end and bigger at the other. One end was a little bit wider than the other. It was about an inch board or a little better.. It was an old piece of board. It was soft wood.
And another said:
Q. Iiow big a stick was that? A. 0, it was about that long [witness indicated]. Q. How wide? A. This [witness indicates]. Q. How thick was it? A. Inch. It looked like pine. I could see Yaki when Piernot struck him with the stick. They were close together.
Defendant said it was a “piece of board” or “a little board. ’ ’ Whatever the nature of this piece of board, the blow was. sufficient to fell the deceased to the earth, and to cause him to stagger, if not fall, when he attempted to arise. The
There was a sort of a three-cornered split of the skull or skull bone and there was a rip from the left eyebrow, and there was a little triangular piece of bone broken entirely loose about one inch across. We removed it with an instrument to relieve the pressure and remove a clot of blood that had gathered under the skull bone. We found an extensive blood clot on the brain. The patient revived some. I saw him again that evening. He was semiconscious then. He died Wednesday about 1 o’clock. I would.say that the cause of death was the infliction of a blow on the head, superficial, one fracturing the skull.
It seems that Louie Tomsic left the country at once. As to this, more hereafter.
Defendant had three defenses: First, that he did not strike the blow intending to kill, but that all he aimed to do was to strike the knife from Yaki’s hand; second, that what he did was in self-defense; and, third, that the blow struck by him was not the cause of death. The verdict was guilty of manslaughter.
Of course defendant’s first defense was not complete in itself; for if he unlawfully struck a blow which resulted in death, he was, under this record, guilty of manslaughter although he did not intend to kill. The second and third defensés were each complete, and these issues'were submitted to the jury. But the manner of submission is complained of, and these complaints we will first consider.
No. 33A. The defense of self-defense, and the evidence relating thereto, should be carefully scrutinized and considered and weighed by the jury to the end that if an accused was in fact acting in self-defense he should not be found guilty, but if he was not acting in self-defense, then a due regard for the ends of justice and peace and welfare of society demand that persons guilty of crime may not make use of that plea as a means of defeating justice, and to protect him from criminal responsibility for a violation of the criminal statutes of our state.
To fully understand this, the one just preceding should also be set out. It is as follows:
No. 33. The defendant is not required to establish that, at the time of the occurrences charged in the indictment, whatever he did do, he was acting in self-defense, but the burden of proof is on the state to show that the defendant was not acting in self-defense, and that it must prove beyond a reasonable doubt. If the state has failed to prove beyond a reasonable doubt that the defendant was not acting in self-defense, you should return a verdict of not guilty. But if, after considering all the evidence and circumstances in the case, including that offered oh the plea of self-defense, you have no reasonable doubt of the defendant’s guilt, then you should return a verdict finding him guilty.
It should also be stated in this connection that although there were many eyewitnesses and a great number of people who were arrayed with the defendant in his altercation, the principal testimony as to self-defense came from defendant alone, and he said:
It also appears from testimony introduced by defendant that when Yaki returned toward the crowd at the well, he was assaulted by Tomsic, or at least he (Tomsic) was ready to ' receive him, and that there were many people present as he returned toward the well; that he did not have his knife out, and a jury would have been justified in finding that defendant was in no danger from Yaki. Indeed there is practically no dispute that Yaki did not have his knife open, and that Tomsic was as close to him as was defendant when the blow was struck. There is no testimony tending to show that any other of the crowd then present was apprehensive of any danger, although defendant claims that as Yaki returned from the fence he threatened to kill the whole crowd.
Under the record we do not think there was any prejudicial error in the instruction given, although we may say, parenthetically, that it is perhaps better for trial courts to give the usual stereotyped instructions relating to self-defense, rather than to introduce innovations. The instruction set out was merely a cautionary one, and was not intended to, nor did it in fact, shift the burden of proof on the issue of self-defense.
Flight, if proved, is nothing more than a confession by another, and the defendant was not entitled to the use of this testimony in his own defense. The trial court did not err in refusing the instruction asked by defendant on this proposition.
Scott v. Woodmen, 149 Iowa, 562, does not, in the opinion of the majority, run counter to this rule.
Directly in support of this holding are: Levison v. State, 54 Ala. 520; Goodlett v. State, 136 Ala. 39, (33 South. 892); State v. Gee, 92 N. C. 756.
Among defendant’s requests, was the following:
7. If you find that the deceased, Tony Yaki, died of injuries inflicted upon him by being struck with rocks or other missiles thrown by one Louie Tomsie, then you cannot find the defendant guilty in this case, even though you may find that -the defendant struck the said Tony Yaki with a stick or piece of board, and you are further instructed in this connection that if, after considering all the evidence in the ease, you have a reasonable doubt as to whether the said Tony Yaki died from injuries inflicted by rocks or other missiles thrown by said Louie Tomsie, or'by being struck with a stick or piece of board by the defendant, then in such event your verdict should be for the defendant, and you should acquit him.
This case was tried after chapter 289, Acts 35th G. A. became effective. Section 3 of that act reads:
All requests for instructions must be presented to the judge before the argument to the jury is commenced and before reading his charge to the jury. The judge, before read
We find no error demanding a reversal, and the judgment must be, and it is — Affirmed.