State v. Beird

• Decision Date: 17 December 1902
• Parties: STATE v. BEIRD.
• Court: Iowa Supreme Court

118 Iowa 474

92 N.W. 694

STATE

v.BEIRD.

Supreme Court of Iowa.

Dec. 17, 1902.

Appeal from district court, Lee county; H. Bank, Jr., Judge.

Defendant was indicted for murder in the first degree, alleged to have been committed by killing one W. A. Dundey by shooting him with a revolver. On the first trial the jury disagreed. On the second trial, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for six years and six months, from which sentence he appeals. Reversed.Daniel F. Miller and James C. Davis, for appellant.

Charles W. Mullan, Atty. Gen., and Charles A. Van Vleck, Asst. Atty. Gen., for the State.

McCLAIN, J.

The unfortunate encounter between deceased, who is spoken of by some of the witnesses as “Captain Dundey,” and this defendant, occurred during a so-called street fair in the city of Keokuk on the 5th day of October, 1901. The testimony, so far as it is necessary to refer to it for the purpose of discussing the assignments of error which we deem material for a disposition of the case, tended to show the following facts and circumstances leading up to the encounter which resulted in the homicide: The deceased, who was a resident of Nauvoo, Ill., about 12 miles distant from Keokuk, came to the latter city on the 4th day of October, about 8 o'clock in the evening; that being the evening designated, in connection with the street fair, as “Carnival Night.” Between that time and midnight he visited several saloons with different friends, had a large number of drinks of whisky, and became considerably intoxicated. Coming out of the last of these saloons, about 1 o'clock a. m. of the same night, he crossed the sidewalk to a street lunch counter owned by one Bland, which he attempted to enter by passing or forcing his way between the proprietor and the defendant, who stood conversing on or near the steps to the car. Words of a hostile nature passed between deceased and defendant, and a scrimmage ensued, during which the deceased struck or struck at defendant with his fists, and received a wound from a ball fired from a revolver which defendant had in his possession just before the scrimmage commenced. There is no evidence of any previous animosity between deceased and defendant, and, so far as appears, defendant was conducting himself in an orderly manner up to the time of the encounter; having previously during the evening drank a number of glasses of beer, but not being, apparently, in an intoxicated condition. With reference to the possession of the revolver by defendant, it should be stated that earlier in the day he had cleaned and loaded it, and carried it in his coat pocket while going about the city, and that it was in his coat pocket when he came from his home upon the main streets of the city to participate in the festivities of “Carnival Night.” His active participation in the festivities consisted in his forming one of a party of masqueraders, but during such time his revolver remained in the pocket of his coat, which was left hanging where he donned his masquerading costume. After the conclusion of the masquerade he had put on his coat, with the revolver in the pocket, and, proceeding toward home, had stopped at the lunch car for the purpose of procuring a lunch, and, while waiting to be served, was holding a conversation with the proprietor of the car, as above stated. There was evidence in support of two theories of defense: First, that the revolver was accidentally discharged, and that the injury to deceased was without any intention on the part of defendant to shoot the deceased; second, that the revolver was used by defendant for the purpose of shooting deceased in self-defense. There was a conflict in the testimony as to which of the two parties to the encounter was the aggressor; there being some evidence that defendant, after an exchange of hostile words with deceased, seized him by the coat collar and pulled him off the steps of the car, while defendant testified (and there was some evidence to corroborate him) that deceased followed defendant from the steps of the car, striking him two or three times with his fist, inflicting severe personal injuries, before the revolver was discharged. It is shown that deceased was a large and powerful man, while defendant is of not above ordinary stature, and slight in body. Witnesses who saw defendant soon after the encounter testified that he had been badly bruised and beaten; but, on the other hand, it appears that, after the revolver was discharged, deceased threw defendant to the ground, and some of the injuries which the latter received may have resulted from the violence then used.

Under the state of facts thus set out as those which there was evidence tending to support, it is clear that it was very material, with reference to the claim that defendant acted in self-defense, to know which party made the first assault upon the other. If defendant was the assailant, then, although he had no intent to kill or commit great bodily injury, yet, having provoked the encounter, he would be guilty of manslaughter, even though he killed deceased under the supposed necessity of doing so to save himself from death or great bodily harm, unless he had abandoned the conflict and retreated as far as possible; while, if the deceased made the first assault in such manner as to threaten defendant with death or great bodily harm, the defendant would have been justified in killing, under the supposed necessity, apparent to him as a reasonable person, for doing so in self-defense. As bearing on this issue, the court allowed the defendant to introduce testimony tending to show that by general reputation the deceased, when under the influence of liquor, was quarrelsome, and that shortly before the affray the deceased was noticeably under the influence of liquor. Defendant further offered to prove that after deceased left one saloon, about midnight, he went along the street towards the place where the affray occurred, and invited a person with whom he had no previous acquaintance to have a lunch at another lunch car than that above described, and that deceased at that time had a...