State v. Borwick
| Decision Date | 04 April 1922 |
| Docket Number | 34054 |
| Citation | 187 N.W. 460,193 Iowa 639 |
| Parties | STATE OF IOWA, Appellee, v. ERNEST BORWICK, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--GEORGE W. CULLISON Judge.
THE defendant was indicted upon the charge of murder in the second degree for the killing of one Leo Holzfaster. There was a jury trial, and defendant was found guilty of manslaughter. From the judgment entered upon the verdict, the defendant appeals.
Reversed.
Tinley Mitchell, Pryor, Ross & Mitchell, for appellant.
Ben J Gibson, Attorney General, and John Fletcher, Assistant Attorney General, for appellee.
On the evening of March 21, 1920. the defendant, Borwick, with one Kost and two young ladies, Miss Howard and Miss Peterson, started from Council Bluffs for an auto ride to Missouri Valley. Borwick and Miss Howard occupied the front seat, and Kost and Miss Peterson the rear seat. On the same evening, and not far from the same time, another auto party was made up for a ride over the same route. In this party Leo Holzfaster was the driver, and he occupied the front seat, with a Miss Hansen, and in the back seat were Donald Clark and another Miss Hansen. The two parties were not acting in concert, and appear to have been entire strangers. It is not quite clear which started first from Council Bluffs, but there is testimony from which it can be inferred that the Holzfaster car was the first out. Whatever be the fact as to the order of the start, it appears to be conceded that, at a point near the town of Loveland, the Borwick car being then in the rear, the driver was desirous of going ahead, and finding the Holzfaster car in his way, made some remark or complaint that the latter was "hogging the road." At about that instant, a pistol shot some witnesses say two) was fired from the front seat of the Borwick car. Though all the passengers in the two cars testified for the State, none was able to say that the shot or shots were fired at the Holzfaster car or in that direction, and Miss Howard, who was sitting on the right of Borwick, and in front of whom it appears the pistol must have been held, if fired toward the other car, which was then on their right front, says she did not see it: and, while admitting that the shot was there fired, says that "it must have been fired to the left." Just then, Holzfaster pulled a little to one side, and Borwick passed him. Very shortly. Holzfaster again took the lead, and at a point about a quarter of a mile from where the shot was fired, be found one of his tires flat, and stopped apparently to repair it. At this point, the road is built along the slope of a hill, there being a high bank on the east or right-hand side and a declivity of considerable depth on the left or west side. As the Borwick car came up in the rear, it slowed down, but, without coming to a full stop, pulled a little to the left, and passed the standing Holzfaster car. This brought the Borwick car close to the break or slope westward from the roadway. As Borwick was executing this movement, Holzfaster addressed Borwick, demanding, "Are you the man who shot my tires?" or words to that effect, and, the question being repeated, Borwick responded, in substance, "What is it to you?" At that, as said by the lady occupying the seat with him:
From his stand on the running board, he began an assault upon Borwick. There is no direct evidence that he was armed with any weapon. Borwick, sitting beneath the steering wheel, and naturally giving some attention to avoid a plunge down the declivity with his car and passengers, was in a position of great disadvantage, and evidently to some extent lost control of the car, which, as one of the witnesses says, zigzagged a little distance on the brink, and went over down the steep descent through the brush and weeds and though the road fence at the foot of the slope, bringing up in the adjoining alfalfa field. At some point during this encounter, one or two shots were fired, and Holzfaster received a fatal wound, dying very soon afterward, without making any statement. His body was found in the alfalfa field, thus indicating that he had maintained his hold on the car throughout the fall from the roadway. The shots were heard by several of the witnesses, but no one is able to state where, except that it was during the descent, the shooting was done. Miss Howard was in the front seat when Holzfaster sprang upon the running board, but as they went over the brink, she was either thrown out or fell out or jumped out, and escaped with a few bruises; but she is wholly unable to tell just how it was done--though it is the theory and claim of the defense that she was thrown or knocked out of the car by Holzfaster, to facilitate his assault on Borwick. On the day after the tragedy, an examination of the defendant disclosed several bruises, cuts, and marks of violence on his head, face, and neck, though none of a serious or dangerous character. What we have already said of the absence of evidence to show that the deceased was armed should be qualified by the statement that there is proof that, near where the car landed, at the foot of the hill, there was discovered a wrench, which would make a handy instrument of offense or defense, and that the wrench was one belonging in the Holzfaster car. Its presence there on the scene of the conflict is sought to be explained by the testimony of the witness Clark, who was a member of the Holzfaster party, who says that, after the trouble was over, he himself took the wrench from their car and carried it down into the field where the Borwick car was standing, and that, after seeing Leo's body, he "threw the monkey wrench down there." As to just why he should take the wrench from their own car and cast it on the ground near Borwick's car, and why he did not reveal the somewhat important circumstance at the inquest or to the grand jury, no explanation is offered.
There is very little dispute between witnesses as to the circumstances attending this regrettable affair, but there is enough of confusion and uncertainty to afford room for varying inferences and conclusions of fact, and perhaps a divergence of opinions among lawyers upon the law applicable thereto. As we have already said, the jury found the defendant guilty of manslaughter. The principal errors assigned by appellant as grounds for reversal are as follows:
I. At the close of the State's case in chief, and again at the conclusion of all the testimony, the defendant moved the court to withdraw from the jury both the charge of murder and the included charge of manslaughter, because of the insufficiency of the evidence to sustain a conviction thereon. The motion was overruled, and error is assigned thereon. We are inclined to the view that, in so far as relates to the included crime of manslaughter, the trial court did not err in denying the motion; but in our judgment, the evidence would not sustain a conviction of murder. It follows, therefore, that the court erred in submitting that issue to the jury. Our reasons for this view, of the record require but little elaboration. Without in any manner excusing or justifying the prior conduct or attitude of the defendant in nagging or irritating the deceased on the drive from Council Bluffs, it is still to be said that, in the fatal affray (if it may be so called), Holzfaster was the aggressor. Defendant was offering him no violence, but was, to all appearances, attempting in a peaceable manner to pass him and proceed on the way with his carload of guests, when deceased, leaving his own car, sprang suddenly upon the running board of defendant's car, and began belaboring the latter over the head, whether with any weapon or with his naked fists is not now particularly material. The space between the Borwick car and the brink of the declivity on that side of the road was narrow, and a plunge over it would be attended with much peril, not only to the defendant, but to those who accompanied him. Cramped as he was by his position under the steering wheel, striving as he naturally must to keep control of the car, and at the same time fend against the attack made upon him, if he did use a deadly weapon (as we must assume he did) to repel his assailant, no just-minded man could draw therefrom an inference of the malice essential to a finding of guilt of murder. The undisputed facts sufficiently rebut the inference or presumption of malice which might otherwise arise from the mere use of a deadly weapon.
II. In several other assignments of error, the appellant challenges the correctness of the court's charge to the jury with particular reference to the law of self-defense, as applied to the case made by the testimony. Bearing upon this question, the appellant requested the court to instruct the jury that:
The request was refused, and no other instruction expressing the same or equivalent proposition was given to the jury. On the contrary, the court charged the jury that:
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