State v. Novak

Decision Date26 May 1899
Citation79 N.W. 465,109 Iowa 717
PartiesSTATE OF IOWA v. FRANK A. NOVAK, Appellant
CourtIowa Supreme Court

Appeal from Benton District court.--HON. G. W. BURNHAM Judge.

INDICTMENT for murder of the first degree. Verdict for murder of the second degree, and a judgment of life imprisonment. The defendant appealed.

Affirmed.

J. J Ney and Tom H. Milner for appellant.

Milton Remley, Attorney General, M. J. Tobin, County Attorney, and Chas. A. Van Vleck for the state.

GRANGER J. WATERMAN, J., (dissenting).

OPINION

GRANGER, J.

I.

Prior to February 3, 1897, the defendant, Frank A. Novak, was a part owner of a stock of goods in a store at Walford, Iowa. He was a married man and carried upon his life an insurance of twenty-seven thousand dollars, mostly payable to his wife. On the afternoon and during the evening of February 2d, he was in company with one Edward Murray, some of the time in a saloon, and in the evening quite late, in defendant's store. That night the store of the defendant burned, and in the ruins was found what is supposed to be the body of Edward Murray. During that night defendant disappeared from Walford and during the next day made his way to Iowa City, reaching there in the evening or night, and bought a ticket for Omaha, and from the latter place made his way to Seattle, in the state of Washingon, and from there to Alaska, and to the Klondike regions, where he was arrested at Dawson City, in the British possessions, on the 12th of July, 1897, by a detective and returned to Iowa. The indictment is for the murder of Edward Murray, and is in two counts, the first charging the murder to have been committed with a deadly weapon by beating and inflicting on him a deadly wound, and the second count charges the offense to have been committed by poisoning, mutilating, asphyxiating, burning, and otherwise injuring the said Murray. The dead body when found in the basement of the building, was on a wire cot on a bank of coal deeply covered with ashes, charcoal, and debris, much charred, and the skull fractured on one side, with a clot of blood on the brain; the conditions being such that the expert testimony shows that the fracture was made while the person was still alive. Assuming the dead body to have been that of Murray, which the jury must have found, and that he came to his death by the defendant, the motive for the deed was thought to be to realize on his insurance, to accomplish which he killed Murray, and placed the body on a cot, on which defendant was accustomed to sleep in the store building, and placed the cot, with the body thereon, in the basement of the building, directly below where the cot stood when occupied by him (defendant); that he placed under or near the cot, with the body thereon, a pair of scissors and a metal identification check, which were known to be carried on the person of defendant, and which were found after the fire; that he then fired the building in order that the body might be burned so as to prevent identification, and then, by his own escape from the country, lead to the conclusion that the dead body was his, and thus secure the insurance. The arrest of defendant at Dawson City was by one Red Perrin, a detective, who was a witness for the state, and under objections he was permitted to state some admissions or declarations made by defendant on their way to Iowa, which may be properly stated in this connection as bearing upon the facts. Being told to state the substance of defendant's statements, the witness said: "To begin with he cited several hard luck stories in connection with his business up until the night of February 2d, his investment and unsuccessful outcome of money put into creameries, of his store being burned on another occasion, of having his safe burned up on one occasion, I believe in the Milwaukee depot, and again of having his safe blowed by robbers in his store and considerable money taken, didn't know the exact amount himself, he said, but there was a good deal of it, and that as a protection or further preventative from being robbed in this manner he had procured a lot of morphine, or, rather, had first sought the advice of some physician in Cedar Rapids, I don't remember his name, as to the quantity of morphine he ought to put into a bottle of whisky not to kill, but to knock a man out. After this he went to a drug store in Cedar Rapids, I don't recollect the drug store he mentioned either, and procured this morphine, and at the same time told the clerk what it was for. He later was in some saloon in Cedar Rapids, and told some parties there what he had this poison for; returning home from there he mixed this morphine with a bottle of whisky; and I will condense this. There is an awful lot of it. It took him two hours to tell it to me, but I will condense it. On the evening of February the 2d a man named Edward Murray came into Walford in some kind of a vehicle (a wagon, I think he said), and later came into,-- either came into Novak's store and Novak went with him to a saloon and had a drink, or Novak went to the saloon and met Murray there, I disremember which. Anyhow Murray accompanied Novak back to the store. He said something about some boys borrowing this wagon, or whatever it was, to go riding, that Murray had driven into town. Also, prior to this time he had told me that his circumstances was such that he would have to raise some money; that he had already made arrangements to raise five hundred dollars, or he tried to; was going next morning, anyhow, to have an uncle of his endorse a note, somewhere south of Walford,--I don't know where it is, don't know his uncle's name,--and, with that end in view, he had taken his shotgun, as he hunted quite often, and got it ready, and his hunting coat in condition, and put some lunch into it, and had it by in the store. * * * Coming back to the store again, when Novak and Murray returned from the saloon, Novak went behind the counter, and continued attending to his business. Murray remained outside, leaning against the counter. As to what time this was I have no idea. I don't believe he was able to give the exact time himself, or I don't think he did. And during this time some few people were in and out of the store until it got pretty late,--he thinks, in the neighborhood of 12 o'clock. That he (Novak) went into the basement to fix the furnace and bank it up, I think he stated for the night. Prior to this time, though, he stated that he had put up this mixture of whisky and morphine behind the counter on a shelf, and told all the employes about the store what it was there for. * * * Well, when he was coming up from the basement, and walking around behind the counter, after a lapse of a few minutes he said that he addressed Murray and noticed that he answered in a very stupefied manner, and it struck him at once, he being a man that would take a drink when he got a chance, that he must have gotten hold of this bottle. Upon going and making an examination of the bottle, he seen that a very large drink must have been taken out of it. He said that Murray continued to get more stupid until he walked around the counter, took hold of him and led him up to his room, and laid him down on the bed, wherever that is. It is up stairs some place in one end of the store or the other. I never saw the store. And that he came down to the body of the store again, that he must have been there a few minutes arranging his affairs, and then lay down on the counter with something under his head, reading, under a Welsbach burner, as he described it. How long he read he doesn't know, but he fell asleep, and what time he woke up he doesn't know--that is, what time of night it was,--but whenever it was he found the entire store filled with smoke and hot air, almost strangling him. The first thing he thought of was Ed Murray asleep on the upper floor. He stated that he made two attempts to get hold of him, but the smoke and heat was pouring down so hard that it was impossible,--couldn't do it under the circumstances--that he returned to the body of the store, made his way to the money drawer, got some one hundred sixty odd dollars--I forgot the exact amount--in silver. This he dumped into his pocket, and, feeling his way out of the building along the counter, he ran against his shotgun. This he picked up and took with him. After getting outside of the building, he said that he walked around it, or part way around it a couple of times, determining what to do. He realized that Murray was in there, that he was heavily encumbered in various ways, and that he thought the best thing to do was to fall off the earth for a while, and that he started and kept going. He told me the course he took, the people he met, and everything connected with it all the way through but that part of it I did not pay much attention to, and that is known anyway, I guess. I don't recollect much about it." It further appears from the testimony of Perrin that within a few minutes after defendant's arrest, which was done by British officers at Perrin's request, he (Perrin) approached defendant and addressed him as Novak; that defendant said to Perrin that he was mistaken, that his name was A. J. Smith; that Perrin then said to him, "It is, is it?" and Perrin further said: "You are accused of killing a man by the name of Ed Murray in Walford, Iowa, and that is why I had you arrested and am holding you under arrest now; but, if you can identify yourself as A. J. Smith, why we will turn you loose." It then appears from the testimony that defendant denied having lived in Iowa, but said he was from near Cincinnati, Ohio, and had lived there prior to living in Chicago for a time. This arrest and talk was at Dawson City on the 12th day of July, 1897, and the...

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