State v. Baker

• Decision Date: 30 June 1909
• Citation: 143 Iowa 224,121 N.W. 1028
• Parties: STATE v. BAKER.
• Court: Iowa Supreme Court

143 Iowa 224

121 N.W. 1028

STATE

v.BAKER.

Supreme Court of Iowa.

June 30, 1909.

Appeal from District Court, Montgomery County; N. W. Macy, Judge.

Under an indictment charging murder in the first degree, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for eight years. From this conviction he appeals. Affirmed.Ralph Pringle and J. M. Junkin, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

McCLAIN, J.

The circumstances of the killing of one Claude Grice by the defendant, with which he was charged in the indictment, so far as material to a consideration of the errors relied upon for reversal, were as follows: The deceased and his brother, Marion were engaged in operating a bakery in Red Oak, occupying for that purpose the first floor and basement of a building which fronted to the east. The stairs to the basement were at the rear or west end of the building. On the day preceding the homicide the defendant and his younger brother Newton were with the deceased in the bakery, when something was said in relation to a small debt owed by Newton to the deceased, and Newton paid the deceased $1.75, which, as Newton testifies, was a little less than deceased claimed, but it is not contended that there was any particular quarrel or ill feeling at this time as between the deceased and Newton. On the following morning Newton went to the bakery, and Marion, the brother of deceased, gave him a receipt for $1.75 in full of all indebtedness. On this visit deceased said something to Newton, who had previously worked with him in the bakery, in regard to helping that day, in order that deceased might get through his work sooner. Newton declined, on the ground that he was sick. Later, and about noon, defendant and his brother returned to the bakery, and went to the basement to see the deceased, who was there at work, and deceased treated defendant and his brother to whisky, drinking some of it himself. Defendant and his brother were near the east end of the basement, and deceased was between them and the stairway. Deceased again asked Newton to work for him, which Newton declined to do. Deceased addressed an opprobrious epithet to Newton, and accused him of not treating him right in refusing to help him, and defendant replied that deceased should not talk to his brother in that way, when deceased said, “I will get you, you son of a bitch,” and ran upstairs. In a few seconds deceased returned down the stairs, saying “I will get you, you sons of bitches.” These are the facts preceding the immediate circumstances of the homicide, as testified to by Newton. Defendant did not testify on the trial. Newton further testified, in substance, that as deceased came towards them, the witness saw in the right hand of deceased what looked to him like a gun; that witness and the defendant were then right by some metal scale weights; that each seized one of the weights, and stepped behind the open door of what is called the “proof box,” defendant being behind Newton; that as deceased approached, Newton could see only the lower part of his body, and the defendant was not in as good position to see deceased as Newton was; that Newton said to defendant, “Look out, George, he has got a gun;” that as deceased advanced, defendant threw the metal scale weight at him, and deceased fell forward, having received the injury which subsequently caused his death, and that defendant and Newton then left the bakery without investigation as to the extent of the injury inflicted upon deceased, and went to the mayor of the city, reporting that defendant had knocked the deceased down with a weight. The entire evidence negatives the possession of a weapon by deceased.

1. The court instructed the jury fully as to the law of self-defense, and the only complaint in this respect is of the failure to tell the jury specifically that defendant had the right to defend his brother from an attack by the deceased. The jurors were instructed, however, with reference to the right of defendant to make self-defense, as against a threatened attack upon him and his brother, in the reasonable belief that deceased was armed with a gun, and this we think was as far as it was necessary to go under the evidence. The testimony of Newton, as already set out, tended to show that the threat of deceased was toward both of them, and that there was no more indication of danger to Newton than to defendant. Newton does not testify that he called upon defendant to protect him against the threatened attack, but his warning to defendant was to look out for the deceased, who had a gun. While this court has not refused to consider errors alleged in failing to instruct the jury as to any so-called defense relied upon to negative the criminality of the act charged, where no instructions have been asked on the subject in behalf of defendant, yet where, as here, instructions are given directly covering, in a general way, the subject-matter of a defense, such as that of self-defense, relied upon by defendant, we feel that we ought not to reverse because the court does not cover every peculiar circumstance relied upon, where no instructions are asked for the defendant calling the attention of the court to the peculiar phase of the evidence which the defendant wishes to have emphasized. We are satisfied that the jury could not have been misled into thinking that the defendant would not have had a right to defend his brother under the circumstances, if his brother were in peril from the assault of deceased. The peril, if any, was a joint peril, and as to that the instructions were adequate.

2. At the conclusion of the evidence there was a motion for defendant to...