State v. Brackey

• Decision Date: 07 April 1916
• Docket Number: No. 30800.,30800.
• Citation: 157 N.W. 198,175 Iowa 599
• Parties: STATE v. BRACKEY.
• Court: Iowa Supreme Court

175 Iowa 599

157 N.W. 198

STATE

v.BRACKEY.

No. 30800.

Supreme Court of Iowa.

April 7, 1916.

Appeal from District Court, Winnebago County; M. F. Edwards, Judge.

The defendant was convicted of having committed assault with intent to inflict great bodily injury, and appeals. Affirmed.T. A. Kingland, of Lake Mills, for appellant.

George Cosson, Atty. Gen., for the State.

LADD, J.

[1] Bertha Brackey became 12 years old Sunday, August 2, 1914. The event was celebrated by a birthday party, to which all the Brackeys in the neighborhood and some others were invited. Liquid refreshments were served, as was customary with them, and, late in the afternoon, began to work. Tom Haugo pushed or threw his sister, the host's wife, to the ground. Turana Brackey, a sister-in-law of the latter, told Tom to be good, and her husband Albert A. Brackey, the accused, came up and inquired “Is that right to hit her?” and seized him by the throat. Albert's sister, Mrs. Dollan, told him to let go, but he would not, and she called for help. When her son Alf came, Albert knocked him down, and would not withdraw until she came at him with a board. Albert thought he might have “bumped” Alf, but explained that all the Dollans “climbed right on top” of him. Anyway all agreed that he then retreated to the house, as his brother, Talleck, called for help and kept the attacking party at bay while Talleck searched the house for munitions of war. “There was Talleck Dollan. He had kind of a 2x4, or else a post, in his hand, about 2 feet long, and then Mrs. Dollan had a board, and Tom Haugo was with them too and had a piece of a bed post from an old bed.” Alf also was there. Albert was scared and called on Gunder Weeks for help. But Gunder's discretion got the better part of his valour and, after a slight advance, he retreated in good order to a place of safety, but Albert denounced him as a coward. Haugo got kicked when sneaking up on Albert, and then Dollans untied their team and drove with their surrey towards the gate. On the way they threatened his life. Nevertheless he “walked just a little ways down that way.” The buggy stopped, and Dollan got out, and, according to Albert, said “If there is any good man or stout man back there that thinks he's anything, come on and I'll fix him.” Albert admitted fear of no one other than Mrs. Dollan, “walked with nothing in his hands,” and as “Dollan was coming towards him and” made a motion to hit him, and “all were coming for” him, he “grabbed him and took him down, and was looking for the others too,” and when he “saw them crowding out of the buggy, * * * gave him some.” He “hit him with my hands.” He “thought” he “would scare them a little and make them go on,” and he “got a little board and hit in the buggy top, and told them to go along.” This was somewhat corroborated by his son and wife, though the latter, as her husband approached his foe, turned her face away. But Alf swore that Albert “had a board in his hand; that he saw him going behind father,” and that “he raised the board and struck him;” that his father “had then just gotten out of the buggy,” and he “couldn't see just where it hit”; and that Albert struck at him. Dollan testified that when out of the buggy he “saw Albert coming toward him;” that then something hit him; that it happened so quickly that he did not notice what it was; that he saw he had a board, but did not see him hit with a board. Mrs. Dollan looked back as her husband left the buggy, and saw Albert “come running just behind her husband with a board in his hand; that he first struck her husband with the board, and her husband fall to the ground;” that he then used his fists. The physician who dressed Dollan's wounds stated that there were three wounds, one in the right temple about 1 1/4 inches long, extending through the tissues to the thin lining of the bone, another over the left eye, and the third in the eyebrow below. The last two were not quite as deep as the one in the temple, and he expressed the opinion that the wounds were produced by some blunt instrument. From this evidence the jury might have concluded that defendant was the aggressor, that he struck Dollan on the head with a board, and that in doing so he intended to inflict a more serious injury than an ordinary battery. The evidence was such as to preclude interference with the verdict.

[2] II. The...