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...