State v. Bittner
| Decision Date | 21 November 1929 |
| Docket Number | 39026 |
| Citation | 227 N.W. 601,209 Iowa 109 |
| Parties | STATE OF IOWA, Appellee, v. FRANK BITTNER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--SHERWOOD A. CLOCK, Judge.
Trial on an indictment accusing the defendant of murder in the first degree. The jury returned its verdict of guilty, and recommended that the defendant be sentenced to life imprisonment. The trial court entered judgment in conformity to law, and the defendant was sentenced to the state penitentiary at Fort Madison for life. From the judgment entered, the defendant appeals.
Affirmed.
Maurice J. Breen, for appellant.
John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, James I. Dolliver, County Attorney, John E Mulroney, Assistant County Attorney, and B. J. Price, Special Prosecutor, for appellee.
DE GRAFF, J.
This case is an echo of the work of certain gangsters in the peaceful city of Fort Dodge, Iowa. Three persons, to wit, the defendant, Frank Bittner, his accomplice, Casey Navin, and the deceased, George McIntire, were professional gamblers and bootleggers. A fourth party, known as Red Watson, whom counsel for defendant terms "a professional gunman from Omaha," was brought onto the scene of action by Bittner and Navin, for the sole purpose of acting with the two men in the perpetration of a robbery of George McIntire, the deceased. It was the imported gunman, Watson, who fired the fatal shot, while the three men were acting in concert to accomplish the robbery aforesaid. Navin was first arrested, and subsequently pleaded guilty to the murder, and received a life sentence. Red Watson decamped on the same evening of the shooting, to wit, May 1, 1927, and his whereabouts has since been unknown. We deem it unnecessary to detail at this point the record facts, for the special reason that the sufficiency of the evidence to sustain the verdict is not in question.
I. The appellant questions the theory of the trial of this case, and predicates reversible error on certain given instructions involving the challenged theory. In brief, the appellant argues that Bittner was tried for conspiracy. This contention cannot be sustained, under the law or under the facts of this case. A person accused as principal of any felony may be a co-conspirator, and the State may, in the prosecution of said felony, avail itself, as a matter of evidence, of a conspiracy theory, but at the same time invoke the theory of aider and abettor in the commission of the crime charged. See State v. Mickle, 199 Iowa 704, 202 N.W. 549. The defendant Bittner, in the instant case, was guilty of murder in the first degree, under the record, or not guilty of any crime. The cause was so submitted, and no included offenses were mentioned in the instruction. This was correct. It is true that the guilt of a person who aids and abets the commission of a crime must be determined from the facts which show the part he had in it, and does not depend upon the degree of another's guilt. State v. Smith, 100 Iowa 1, 69 N.W. 269. It is also true that all persons concerned in the commission of a crime, whether they directly committed the act constituting the offense or aided and abetted its commission, may be jointly or severally indicted as principals. Section 12895, Code, 1927; State v. Carlson, 203 Iowa 90, 212 N.W. 312. In the Carlson case it is said:
The instant indictment says nothing about a conspiracy. See State v. Munchrath, 78 Iowa 268, 43 N.W. 211. It was not necessary so to do, to make evidence of a conspiracy competent. The indictment does not name any other person except the defendant Bittner. It was not necessary to name any of the other parties in said indictment. It is said in State v. Wolf, 112 Iowa 458, 84 N.W. 536:
In the case at bar, the instructions given by the court to the jury are not so blended in the language used that it may be said that the jury was misled as to the court's meaning, and therefore the defendant cannot claim prejudice. It would be difficult, indeed, for a trial court, in the light of the evidence before us, to avoid all reference to the conspiracy evidence relating to the three parties who were participes criminis in the crime charged. The jury was fully warranted, under the evidence, on either theory, in returning a verdict of guilty as charged, and it may be said, in addition, that the defendant Bittner was fully protected by the court's instructions in relation to the conspiracy theory, and in one place it is said:
"But if there was no connection between the acts of the defendant, Frank Bittner, and the acts of Red Watson and Navin, as to the shooting, or if the attempted robbery, if one there was, upon the said George McIntire was not jointly done or participated in or countenanced by the defendant, Bittner, but the said Bittner was acting independently of and unconnected with Red Watson and Austin E. Navin, then the defendant, Bittner, is not liable therefor, and your verdict must be 'not guilty.'"
The murder charged was under Section 12911, which reads:
"All murder * * * which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * is murder in the first degree * * *."
It was this species of murder with which the court was dealing in the instant case. The evidence clearly discloses that there were three persons involved, although but one fired the shot when the holdup of McIntire was attempted; and it is evident that, after McIntire fired one shot in defense of himself and his property, Watson fired two shots, and fled the scene. It was the defendant Bittner who took Watson by auto to and from the scene of the murder at Fort Dodge, from which point Watson rode in his own car to Des Moines, and from which place he has not been traced. Bittner's accomplice, Navin, without any inducement or hope of reward, told the whole story of the crime, and his story is corroborated in many of the material facts and acts by other witnesses, and even in part by Bittner himself, who voluntarily told his story to the grand jury of Webster County. No question arises in this case as to the corroboration of this accomplice.
It is the claim of the defendant Bittner that he knew nothing of the purported scheme or conspiracy which the State attempted to prove, and did prove, but that he acted independently, and was not connected with Red Watson or Navin. The trial court, as heretofore pointed out, recognized his claim, and submitted same to the jury. In a subsequent instruction, in defining the term "robbery," it is said:
"An attempt to perpetrate a robbery means that the defendant did an act or acts toward the commission of a robbery for that purpose, and with that intent, but with a failure in the perpetration thereof."
This was an aiding and abetting instruction, and it was the province of the jury to determine, under all of the facts and circumstances, as disclosed by the evidence, whether the defendant Bittner was to be believed, or whether, pursuant to a conspiracy, he actually aided or abetted the unlawful act resulting in the death of McIntire. The jury, under the instructions when read as a whole, could not, in our judgment, misunderstand or misconstrue the applicable law of the case, as given by the trial court.
II. Complaint is made of Instruction No. 16, relative to the consideration to be given what is termed "confession of facts" made by the defendant. It appears that, after Bittner was arrested, Myron Tuller, the sheriff of Webster County, had a conversation with Bittner, at a time when the two men went down to the river to find the gun which Bittner said he threw out of his auto on the night of May 1st, and that the sheriff was informed by Bittner that he (Bittner) told "the damned fool [meaning Red Watson] not to hurt him [meaning McIntire]." It is also shown that Hi Yackey, a special state officer, working under the direction of the attorney-general of Iowa, was told by Bittner that he (Bittner) and Casey Navin and Red Watson were in the alley (where Bittner's Cadillac stopped immediately prior to the shooting of McIntire), and that he told Watson at that time not to hurt McIntire. The record also discloses that Lyle Tuller, son of the sheriff, and a deputy sheriff overheard a conversation between Bittner and Clarence Darrow, the well known defender of persons accused of crime, but not of counsel in this case. The first thing he heard Darrow say to Bittner was: "How did they secure such a complete case against you?" Bittner answered: These statements do not classify under the technical legal term, "confession," but they were admissions, or, as the trial court termed them, "statements or confessions of fact." They did tend to corroborate Navin as to some of the material facts stated by him to the trial jury, and these statements constituted the basis for the trial court in giving an instruction relative to these statements or confessions of fact. In this case it may be noted that Bittner, as a part of his defense, claimed that promises and inducements were held out to the defendant and Navin to secure these admissions or confessions of facts, and therefore...
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