State v. Johnson

• Citation: 264 N.W. 596,221 Iowa 8
• Decision Date: 14 January 1936
• Docket Number: 42970.
• Parties: STATE v. JOHNSON.
• Court: United States State Supreme Court of Iowa

264 N.W. 596

221 Iowa 8

STATE v. JOHNSON.

No. 42970.

Supreme Court of Iowa.

January 14, 1936

Appeal from District Court, Des Moines County; Oscar Hale, Judge.

Indictment for murder. Plea of not guilty. Defense, an alibi. Verdict guilty of murder in second degree. Sentenced for life defendant appeals.

Affirmed.

Doran & Doran, of Boone, and F. S. Finley, of Mt. Pleasant, for appellant.

Edward L. O'Connor, Atty. Gen., Walter F. Maley, First Asst Atty. Gen., and John A. Dailey, Co. Atty., of Burlington, for the State.

PARSONS, Justice.

On May 27, 1934, about 5:20 in the morning, F. W. Sauer, a captain of the city of Burlington, Iowa, police force, received a gunshot wound, from the effects of which he died, as shown by the evidence herein, and as conceded by the defendant's attorney in open court and in the presence of the defendant in the case, which warranted the jury in finding the facts as set forth herein:

The defendant and his wife, Dessie Johnson, lived in the city of Des Moines at 1716 Logan, and had a V-8 black Ford coupé carrying Polk county license plates 77-35980, in the name of Dessie Johnson; that on May 25, 1934, at near midnight, the defendant was at the Blue Moon, a roadhouse about two miles out of Galesburg, Ill., on highway No. 34, and that there was a large crowd there dancing and drinking; that the defendant and two others came in, the defendant having a sawed-off or short barrel shotgun, and at least one of the others having a blue steel revolver; that a couple of shots were fired in the building, and it was learned a stick-up was in progress. One of the men went around taking money from the crowd, and the defendant stood in the doorway with a shotgun holding off the crowd. Two revolvers and a shotgun like the ones used in the stick-up were found in the house occupied by defendant and wife in Des Moines, Iowa, at the time of the arrest of the defendant. The defendant was seen in company with another man and a reddish-haired woman (not Mrs. Johnson) on May 26, 1934, about 4 o'clock p.m. at the Arcadia Club, a roadhouse near Gladstone, Ill., about 6 miles east of Burlington; he was there a short time and left; and while there it was noticed that Johnson was very nervous. That on Sunday morning, May 27, 1934, about 5:20 a.m., Faith Hansen, a young woman of Burlington, heard voices in the alley near the building where she roomed, and thought a window was being opened and closed at the Economy Store, and she called the police. As a result of that call, Capt. Sauer and other officers came to the Economy Store building, and Sauer received a wound from a shotgun in close proximity to the Economy Store; that defendant and another man came from the vicinity of the shooting, defendant carrying a shotgun, and the other carrying a revolver, and they went to where a V-8 Ford car was parked, the defendant going to the right side of the Ford V-8 and laid his shotgun on the floor of the car, and the other man with the pistol went to the driver's side of the car; one saying to the other, " Oh hell bend them up," and the one to whom this was said went back and tried to bend the license plate down so that the county number could not be seen. On the same morning about 7 o'clock a Ford V-8 coupé was seen about 8 miles southwest of New London, a town on the road from Burlington to Des Moines, about 28 miles west of Burlington. There were two men in the car, which was traveling at a high rate of speed over a rather crooked dirt road, and one of the men in the car was heard to say, " We must angle northwest." The witness seeing this car and hearing these words was standing thirty feet back of the road, and had a side view of them; he did not notice the license plates on the car. This was on the road to Des Moines from Burlington, which is about 200 miles from Des Moines.

The further facts that could be found by the jury are that on May 30, 1934, officers came from Burlington with a warrant to arrest the defendant, Des Moines police cooperating. They went to the acknowledged home of defendant, and there found a V-8 Ford coupé which was subsequently taken to Burlington and there identified by witnesses as like the car they testified to seeing being driven out of town, and that the license plates on said car showed that the rear plate had been bent down at one corner so as to obscure the county number; the evidence of such bending still showing on said plate. In addition, there was found on the premises of defendant a pair of rubber gloves and a sawed-off shotgun and two blue steel revolvers of about .38 caliber.

There was further evidence in the case that the defendant was taken as a prisoner to Fort Madison for safe-keeping, and while there he was heard in conversation with a convict, who said to him: " You got yourself in a hell of a fix. What did you want to smoke him down for?" and defendant replied: " It was either me or him, and I am damn sure it wasn't going to be me; I can't stand another pinch."

The defense introduced was in the nature of an alibi. The jury could believe the alibi witnesses or it could believe the four or five witnesses that saw the defendant in Illinois on the 25th and 26th of May, 1934, or the various witnesses who saw the defendant in Burlington; and could, if it believed the alibi established, have found the defendant not guilty; but it did not so find. After considering all the evidence, it found the defendant guilty of murder in the second degree. Evidently the jury must have believed the four or five witnesses who saw defendant in Illinois, and who saw him after he was arrested; and believed the witnesses who saw him in Burlington after the arrest, and all identified him, and found that the other facts and circumstances warranted his conviction.

So there was sufficient evidence to sustain the verdict, and, the jury being the judges of that, unless there is prejudicial error in the record which calls for a reversal of the case, we should not reverse. It is claimed that the court erred in giving instructions to the jury by not going below manslaughter in the charge. In this there was no error. The rule is that an included offense must be submitted to the jury on the concurrence of two facts, to wit: First, when such included offense is an included offense in the one charged in the indictment; and, second, when the record contains evidence justifying the jury in finding the accused guilty of such included charge rather than of some higher offense. State v. Kyne, 86 Iowa 616, 53 N.W. 420; State v. Hutchinson, 95 Iowa 566, 64 N.W. 610; State v. Trusty, 118 Iowa 498, 92 N.W. 677; State v. Egbert, 125 Iowa 443, 101 N.W. 191; State v. Barkley, 129 Iowa 484, 105 N.W. 506; State v. Ockij, 165 Iowa 237, 145 N.W. 486; State v. Harrison, 167 Iowa 334, 149 N.W. 452; State v. Perkins, 171 Iowa 1, 153 N.W. 146; State v. Buck, 205 Iowa 1028, 219 N.W. 17; State v. Wheelock, 216 Iowa 1428, 250 N.W. 617; State v. Woodmansee, 212 Iowa 596, 233 N.W. 725.

In the trial of the case there was a concession by the defendant, through his counsel, in open court, that Capt. Sauer came to his death as a result of the gunshot wound inflicted. The court in its instructions did not submit any charge below manslaughter. It being admitted in the record in this case that Capt. Sauer died from the wound inflicted on him on the morning of May 27, 1934 whoever inflicted that wound was guilty of causing the death of Sauer. There is nothing in the record whatever that would have justified the giving of any of the instructions on a lower degree, because, when death results, as the result of the act herein charged, it is homicide, which is divided into first degree murder, second degree murder, and manslaughter, the unlawful killing of a human being without malice. State v. Woodmansee, 212 Iowa 596, 233 N.W. 725, says the court need not and should not instruct on manslaughter when the record reveals no element of such offense, and lays down the rule that, in the absense of evidence to the contrary, the use of a deadly weapon in a deadly manner generates a presumption of malice, but not a presumption of willfulness or premeditation. So, as manslaughter is the unlawful killing of a human being without malice, it may sometimes be not error to refuse even an instruction of manslaughter in such case.

In State v. Walker, 133 Iowa 489, on page 498, 110 N.W. 925, 929, the court said: " The record in the case clearly shows that, if the defendant is guilty of any crime, he is guilty at least of the crime of manslaughter. We have repeatedly held that, in such cases, it is not error to omit instructions covering a lower degree of crime included in the indictment."

State v. Quan Sue, 191 Iowa 144, 179 N.W. 972, holds that an accused on trial for murder in the first degree has no right to demand that the court submit to the jury the included offense of manslaughter, when the record is bare of any evidence tending to prove manslaughter. The right to demand the submission of included offenses does not embrace the right to demand that the jury be turned loose in whimsical license or latitude to do as it pleases, irrespective of the evidence; and this is true though the court submits murder in the second degree.

So an examination of all these cases fully sustains the rule as laid down. Besides that, there is scattered through the Iowa reports a dozen cases or more prior to any of these cited from which can be deduced only this rule. Manslaughter being the mere killing of a human being without malice, ordinarily is given, as there may be a possibility that it may have been absent and no prejudice to the defendant may exist from the inclusion of it within the instruction.

The defendant complains of the admission of the testimony as to what...