State v. Baratta

• Decision Date: 13 November 1951
• Docket Number: No. 47843,47843
• Parties: STATE v. BARATTA.
• Court: Iowa Supreme Court

Page 866

49 N.W.2d 866

242 Iowa 1308

STATE v. BARATTA.

No. 47843.

Supreme Court of Iowa.

Nov. 13, 1951.

Charles W. Bowers, and Ray Rosenberg, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen. and Clyde Herring, Polk County Atty. of Des Moines, for appellee.

THOMPSON, Justice.

Defendant was accused by grand jury indictment of the crime of murder in the first degree. Upon the trial the court withdrew the charge of first degree murder and submitted to the jury the included offenses of murder in the second degree and manslaughter. A verdict finding defendant guilty of second degree murder was returned, and judgment entered accordingly. Defendant, by his appeal, raises several questions of alleged error.

The indictment charges the commission of the offense on the early morning of June 10, 1950. The defendant was the owner and operator of a tavern in the city of Des Moines. The deceased, Wilbur Sandin, entered the tavern between 11 and 12 p. m. on June 9th. Presently he became engaged in an altercation with one Carroll Pringle, another patron. About 12:45 a. m., Mrs. Mary Doris Sandin, the wife of deceased, appeared at the tavern, in response to a telephone call from her husband. After she came the argument between Sandin and Pringle was resumed. Sandin invited Pringle to 'come on outside and let's continue this.' At this point the defendant came to the scene of the controversy and asked what was going on. Sandin told him that 'this is between Pringle and me, and I don't want to have any trouble with you.' Pringle said that he was telling Sandin that he was 'yellow,' and Baratta said: 'Sure he is yellow. That is why he is wearing glasses.' He then said to Sandin: 'Take your glasses off. I don't like to hit a man with glasses on.' Sandin stood up and took off his glasses and put them in his coat pocket. Baratta then said: 'Oh, get the hell out of here. I don't want to be bothered with you. You are still yellow but get the hell out of here.' Sandin said: 'All right, Baratta. I don't want to have any trouble with you. I will go.'

Sandin and his wife then started for the door. After they had gone about eight feet toward the door, Baratta called: 'Hey you' or 'say.' Sandin turned partially around and Baratta struck him in the face or head so that his hat flew off and his glasses were knocked off. Baratta stepped toward Sandin as he struck and hit him with an 'upswing.' The blow landed on Sandin's face or head. The blow knocked Sandin down, and as he fell to the floor his head struck the south wall of the building. Blood started to come from Sandin's left ear as he lay on the floor. Someone called for an ambulance and Sandin was taken to a hospital where surgery was performed, but he died on June 18th next, apparently from the effects of a blood clot on the brain.

Sandin was 32 years of age, six feet tall, weighing between 175 and 180 pounds, and had been in apparent good health. Baratta was 29 years old, five feet and five inches tall, and weighed 160 pounds. Baratta testified that he called the ambulance for Sandin; Mrs. Sandin says it was some other person. After Sandin was taken away, Baratta closed the tavern and, instead of going to his home, spent the night at a down town hotel. Four Des Moines police detectives testified that defendant's reputation for good moral character was bad. There is evidence that the floor at the point where Sandin fell was slippery from spilled beer and water.

There is also substantial evidence that Sandin, as he turned back after starting for the door, said that there was no one there big enough to throw him out, and to Baratta: 'That goes for you too, you Dago bastard.' There is also testimony for defendant that Sandin turned and started back toward Baratta with his arm raised as if to strike him. The State's evidence controverted this, but it clearly raised and issue of self-defense which the court recognized and upon which it instructed, as referred to in Division II of this opinion.

I. The first assignment of error goes to the matter of the submission of the offense of murder in the second degree. It is defendant's contention, raised properly by objections, exceptions and motions, that the facts shown did not make a case for the jury on this question. In considering it we must, of course, take the evidence in the light most favorable to the State. Some of the facts set forth above were in dispute, but we must consider them as proven for the purpose of determining whether there is support for the verdict rendered.

It is defendant's thought that there was no sufficient showing of malice to justify a finding of murder. The able trial court properly withdrew the charge of first degree murder, but was of the opinion that there was sufficient evidence of malice aforethought to require the jury's finding upon the question of second degree. While the evidence of malice is not overwhelming, we agree with the holding that there was enough.

Defendant's counsel cite, at considerable length, cases from other jurisdictions which hold that malice will not ordinarily be implied from a blow with the bare fist inflicted upon a person of mature years, of comparable size, and in good physical condition. People v. Crenshaw, 298 Ill. 412, 131 N.E. 576, 15 A.L.R. 671; McAndrews v. People, 71 Colo. 542, 208 P. 486, 24 A.L.R. 655; State v. Roush, 95 W.Va. 132, 120 S.E. 304, and other cases are relied upon. But we are not confined to the inference of malice implied from an assault with a deadly weapon. Malice may appear from other evidence. Nor need an intent to kill be shown. In State v. Burris, 198 Iowa 1156, 1158, 198 N.W. 82, 83, we said, quoting with approval from State v. Decklotts, 19 Iowa 447:

"A specific intention to kill, to take life, is not essential at common law to constitute murder; nor is it essential, under our statute, to constitute murder in the second degree, although it is essential to constitute murder in the first degree.'

'This declaration has been adhered to in repeated decisions of this court.' (Italics supplied.)

We have recently approved definitions of malice in State v. Rutledge, Iowa, 47 N.W.2d 251, 260, which we set out:

"Malice means that condition of the mind which prompts one to do a wrongful act intentionally, without legal justification or excuse. It does not mean mere spite, hatred, or ill-will, but does signify that state of disposition which shows a heart that is regardless of human life.' * * *

"Malice as applied to murder in the second degree does not necessarily mean spite or hatred although both of these elements may exist; but it means the doing of an act wrong in itself, without good cause or lawful excuse." See, also, for an approved instruction, State v. Hofer, 238 Iowa 820, 833, 28 N.W.2d 475.

In State v. Sayles, 173 Iowa 374, 155 N.W. 837, we affirmed a conviction of murder in the second degree where death resulted from a blow with the fist. The lower court had submitted the charge of murder in the first degree, and much of the Supreme Court's discussion centered around the question of whether there was sufficient evidence to warrant such a ruling. However, we find this language pertinent to the question before us, 173 Iowa at pages 381-382, 155 N.W. at page 839: 'Though death is infrequently caused by a blow from the fist, it does happen sometimes; and from the fact that the accused prior to the killing threatened death in coarse language, returned to the quarrel after having departed, and death resulted from a stroke by him on the body likely to cause serious injury there was some room for the inference that the taking of life was with malice aforethought, deliberate, premeditated, and with the intent to kill.'

The facts in the Sayles case, while perhaps somewhat stronger, much resemble those in the case at bar. The defendant in the Sayles case had been angered by an accusation concerning the taking of a bicycle, made against him by the deceased; had accused the deceased of 'walking up the street' with his wife, and had threatened to hit deceased so hard that 'scavengers would have to come down the next morning to get him'. After he had struck deceased, he was knocked down, and held, by deceased's brother; and he then said: 'If you let me up, I will clean the whole Runyan family.' These things were thought to be sufficient evidence of malice to require submission to the jury.

It is evident that an assault need not be made with a deadly weapon before malice can be inferred. Other things--threats to do bodily harm--may be sufficient. A wrongful act intentionally done, without legal justification or excuse, may support a finding of malice aforethought within the meaning of the statute defining murder in the second degree. Here, the record shows that defendant called deceased 'yellow' and invited him to remove his glasses. 'I don't like to hit a man with glasses on.' While he did not immediately strike him when the glasses were removed, he did so very shortly afterward. These threats and manifestations of ill will distinguish this case from State v. Wilson, 234 Iowa 60, 97, 11 N.W.2d 737. The evidence is conflicting, and at its best does not make a strong showing of malice, but we think the jury was properly permitted to say whether defendant's act was wrongful, without legal justification or excuse, and so to infer malice therefrom, since, as has been pointed out, a specific intent to kill is not necessary.

II. Further error is assigned by the defendant upon the giving of instructions Nos. 11 and 12. The material part of No. 11 is this:

'You are instructed that the defendant Charles Baratta, being in his place of business, had a right to order Sandin from his tavern, if the said Sandin became quarrelsome or disorderly, and if the defendant ordered Sandin to leave the tavern because Sandin was quarrelsome or disorderly, it was the duty of Sandin to leave peaceably.

'If you find from the evidence that Sandin did not...