State v. Blee

• Decision Date: 13 March 1907
• Citation: 111 N.W. 19,133 Iowa 725
• Parties: STATE v. BLEE.
• Court: Iowa Supreme Court

133 Iowa 725

111 N.W. 19

STATE

v.BLEE.

Supreme Court of Iowa.

March 13, 1907.

Appeal from District Court, Marion County; J. H. Applegate, Judge.

The defendant was indicted for murder in the first degree. On trial he was convicted of manslaughter, and he appeals. Reversed and remanded.Hays & Amos, for appellant.

Chas. W. Mullen, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

BISHOP, J.

The killing by defendant of his half-brother, Isaac Failor, is not disputed. Self-defense was relied upon to secure a verdict of acquittal. The parties resided upon adjoining farms; the defendant, with his wife, whom he had married about a year previous, living with his mother. It seems that trouble arose soon after the marriage of defendant, and was connected in some way with the right or supposed right of defendant to longer remain at the mother's home. This was followed by a contention as to the right of defendant to a passageway over a portion of the farm of the deceased as a means of access to a remote part of the mother's farm. On the day of the tragedy, the defendant had been to such remote field--to salt some stock and to hunt, as he says--and on his return he traveled over the disputed way to reach a lane leading to the highway. As he passed by the outbuildings of deceased carrying his shotgun, the latter with his young son 12 years of age were about the yards and buildings at work, and each saw the other. The immediate circumstances of the tragedy are in dispute. They were known only to the defendant, and the young boy, as the shooting of Failor was instantly fatal. It is the story of the boy as told on the witness stand that, after defendant reached a gate leading into the lane, “he called my father down. I walked along down that way with my father, and then he asked him what he had set that post in that gate for. Father said: ‘Because I wanted to.’ Jim said: ‘You set it there to keep me from going through, didn't you?’ Father said: ‘You are not going through there tracking up my land.’ Jim said: ‘If you stop me from going through here, I will stop you from going over that lane.’ Father said: ‘I have paid for that lane, and I have a right to travel it.’ Jim said: ‘Ike, I have got a contract to go through here.’ Father said: ‘I never gave you a contract in my life.’ Jim said: ‘Don't you say that again, that you are going over that road.’ Father said: ‘I will.’ Jim then took the gun off his shoulder and pointed it at him, and said: ‘Don't you say it again that you are going through there.’ Father said: ‘I will.’ Then father said: ‘God bless my children.’ And then Jim shot.” The boy further says that, when the shot was fired, his father's hands were hanging at his side, and that he had a pair of cloth mittens on. It is the defendant's version that, as he approached the gate, the deceased called to him “and wanted to know what in hell I was doing in there. He was, perhaps, 125 feet behind me, and the little boy still behind him. I asked him if I didn't have a right to go through there, and he said: ‘No, God damn you, you haven't.’ And I asked him who set that post down there, and he said: ‘By God, I set it there.’ And he kept coming on, and I stopped, and he kept coming after me, and he used an oath and told me to get out of there or he would fix me, and I went on toward the gate. When I got over the gate, he was within 16 or 18 feet of me. He had then pulled off his mitten, and he says: ‘God damn you, I will kill you’--and reached back for his revolver. I was standing right in front of him, and when he reached back for his revolver I shot him.”

1. The defendant, as a witness, testified that, on an occasion a short time before the tragedy, he met the two brothers, Isaac and William Failor, when an altercation of words and blows took place. “I had been to a neighbor's, and when I came back I saw Ike at a small brush pile just west of our house. It was dark the first part of the evening, but in the latter part it commenced to snow and got lighter. This was probably a hundred feet from the house. The first I noticed he stepped out in front of me.” Being asked what was said and done by Isaac, the state objected, on the ground that a recitation of the details of the affray was not competent, and the objection was sustained. Counsel for defendant then stated it to be their purpose to show as circumstances of the meeting that the affray began by Isaac cursing the defendant, and by at once following this up with a physical assault. To this the court responded by saying, in substance, that the fact of the altercation was alone material. not the particulars or merits thereof, “or even to show who was the aggressor, or the circumstances surrounding it.” This ruling was subsequently modified to permit the introduction of “any matter in connection with it in the nature of a threat against the defendant.” It is no part of the contention for error that defendant was entitled to go into the specific details or merits of the affray. The complaint is that he was not allowed to show generally who was the aggressor. We think the contention for error thus made must be sustained. It is quite universal doctrine that, in cases of homicide, where the killing is admitted and self-defense is relied upon as a justification, the state of the previous relations between the parties may be inquired into, and this for two purposes: as bearing upon the question who was the aggressor in the fatal affray, and as tending to throw light upon the mental attitude of the defendant when he fired the fatal shot. And to the state of the law as thus far stated, counsel for the state and defendant are agreed.

Addressing ourselves to the phase of the subject first above stated, it must be manifest that it was matter of prime importance to determine who was the aggressor in the fatal affray. But two witnesses could speak from personal knowledge on the subject, and in their testimony they are diametrically opposed to each other. If the boy was to be believed, the killing was unjustifiable. If the defendant was to be believed, he might well be acquitted; his asserted belief of imminent peril being credited. Now, the mere fact that previously a state of enmity had existed between the parties, or that they had been more or less frequently involved in affrays, without more, could not in the very nature of things have effect to throw light upon the controverted fact as thus made in the case. The fact of the occurrence of an affray takes on importance only when it is known who was the aggressor therein. The parties might have mutually agreed to fight, or, on the other hand, one of the participants may have been wholly innocent of offense. To bring forward the bare fact that an affray had taken place, cutting off all inquiry into the attitude of the participants at the outset might well result in a perversion of the course of justice, and therefore altogether indefensible. It is the fact of an assault, and not the mere fact of an affray, that is material. And, it being known who made the assault, the effect, as we think, is to lend corroboration to the claim that the one making the assault was also the aggressor in the fatal affray. It is clearly within the bounds of reason to say that the claim by one party to an affray that in respect thereof the initiative was taken by the other may be strengthened by proof of the fact that such other had on former occasions threatened to, or had in fact assaulted or attacked, beat, waylaid, or shot at him--this, of course, where, as in the case before us, there had been no intermediate reconciliation. Stating the proposition in another way, where one is shown to have committed an unprovoked assault on yesterday, it is not altogether improbable that he will repeat it to-day or to-morrow, if the occasion shall bring the object of his wrath within his reach, and the fire of passion is still burning. Of course, the corroborative weight to be given the evidence of a previous assault or threat to assault is matter for the considerationof the jury. As directly supporting our conclusion thus expressed, see 21 Cyc. p. 962, citing the following, among other, cases: Bell v. State, 69 Ark. 188, 61 S. W. 918, 86 Am. St. Rep. 188;Monroe v. State, 5 Ga. 85;Coxwell v. State, 66 Ga. 309;State v. Scott, 24 Kan. 68;Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17;State v. Schleagel, 31 Pac. 1105, 50 Kan. 325;Glennewinkel v. State (Tex. Cr. App.) 61 S. W. 123;State v. Graham, 61 Iowa, 608, 16 N. W. 743. See, also, State v. Helm, 92 Iowa, 540, 61 N. W. 246, wherein it is said that, if it be uncertain who was the aggressor, even threats by the deceased which had never been communicated to his slayer are admissible as tending to show that in the fatal encounter the deceased was seeking to carry his threats into execution.

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