State v. Burris

• Decision Date: 04 April 1924
• Docket Number: 35774
• Parties: STATE OF IOWA, Appellee, v. ARCHIE BURRIS, Appellant
• Court: Iowa Supreme Court

198 N.W. 82

198 Iowa 1156

STATE OF IOWA, Appellee, v. ARCHIE BURRIS, Appellant

No. 35774

Supreme Court of Iowa, Des Moines

April 4, 1924

REHEARING DENIED DECEMBER 11, 1924.

Appeal from Wapello District Court.--F. M. HUNTER, Judge.

THE defendant was indicted for murder in the first degree, and upon trial was convicted and sentenced to be hanged. He prosecutes this appeal.

Affirmed.

Daniel F. Steck, for appellant.

Ben J Gibson, Attorney-general, John Fletcher, Assistant Attorney-general, N.W. Roberts, and L. L. Duke, for appellee.

PRESTON J. ARTHUR, C. J., EVANS, STEVENS, DE GRAFF, and VERMILION, JJ., concur. FAVILLE, J. (dissenting).

OPINION

PRESTON, J.

This is the second appeal of this case. The opinion upon the first appeal is reported in 194 Iowa 628. The material facts of the case are set out in the former opinion, and there was but little variation in the evidence upon the second trial. It is not necessary that we repeat the facts in this opinion.

1. The court instructed the jury as follows:

"The distinguished features between murder in the first degree and murder in the second degree are that, in the former, or murder in the first degree, there must be, in addition to the element of malice aforethought, a specific intent to kill; and the assault and killing must be willful, deliberate, and premeditated; while in the latter (or murder in the second degree), it is sufficient if the assault and killing was unlawful and felonious and with malice aforethought."

It is contended by appellant that the court erred in instructing the jury that a specific intent to kill was essential to establish murder in the first degree, but, in effect, that it was not a necessary element of murder in the second degree. As early as State v. Decklotts, 19 Iowa 447, we said:

"A specific intention to kill, to take life, is not essential, at common law, to constitute murder; not is it essential, under our statute, to constitute murder in the second degree, although it is essential to constitute murder in the first degree."

This declaration has been adhered to in repeated decisions of this court. State v. Gillick, 7 Iowa 287, 312; State v. Morphy, 33 Iowa 270; State v. Mewherter, 46 Iowa 88, 102; State v. Keasling, 74 Iowa 528, 38 N.W. 397; State v. Seery, 129 Iowa 259, 105 N.W. 511; State v. Baldes, 133 Iowa 158, 110 N.W. 440; State v. Quan Sue, 191 Iowa 144, 153, 179 N.W. 972. There was no error at this point.

2. In Instruction No. 12, the court said:

"Malice, as used in the indictment and these instructions, means that condition of the mind which prompts one to do a wrongful act intentionally, without legal justification or excuse. It does not mean mere spite, hatred, or ill will, but does signify that state of disposition which shows a heart regardless of human life. This character of malice may be presumed from the intentional use of a deadly weapon in a manner likely to inflict great bodily injury or death."

Appellant challenges the first of the quoted sentences. The objection is not well taken. The definition given by the court is identical in language with an oft repeated definition of malice in cases of homicide which has stood the test of time and repeated attacks. The definition evidently originated in Baromage v. Prosser, 107 Eng. Rep. 1051, decided in 1825. It has been repeated in a very large number of cases that have met with the approval of the English and American courts of last resort. See 5 Words & Phrases 4298, 4300; 29 Corpus Juris 1084, 1085, and many cases cited. We have held that it is not erroneous. State v. Decklotts, 19 Iowa 447; State v. Klute, 160 Iowa 170, 140 N.W. 864.

The last sentence of the instruction is likewise criticized. It is the uniform and general holding, in cases of homicide, that malice may be presumed from the intentional use of a deadly weapon in a deadly and dangerous manner. State v. Zeibart, 40 Iowa 169; State v. Townsend, 66 Iowa 741, 24 N.W. 535; State v. Hockett, 70 Iowa 442, 30 N.W. 742; State v. Hayden, 131 Iowa 1, 107 N.W. 929; State v. Brown, 152 Iowa 427, 132 N.W. 862; State v. Teale, 154 Iowa 677, 135 N.W. 408. In a separate instruction, the court defined accidental shooting, and told the jury that, if the defendant shot the decedent negligently and recklessly, the crime would be manslaughter, and not murder, and that, if he exercised due care, and the killing was accidental, then he should be acquitted. We fail to find error here.

3. It appears from the evidence that, on December 18, 1921, the appellant had signed a written confession, which is referred to in the evidence as Exhibit L. This written instrument was before the grand jury which returned the indictment in the case, but the same was not returned with the indictment and filed with the office of the clerk of the court and attached to the indictment. It was offered in evidence by the State, and appellant's objections thereto were overruled. Section 5258 of the Code provides as follows:

"When an indictment is found, all minutes and exhibits relating thereto shall be returned therewith and filed by the clerk of the court, and attached to the indictment."

Prior to the enactment of this section of the statute, we held that exhibits that were before the grand jury and were not noted upon the minutes of the evidence were admissible in evidence, and that it was not necessary to set out such exhibits or note them in the minutes of the evidence. State v. Mullenhoff, 74 Iowa 271, 37 N.W. 329; State v. Hurd, 101 Iowa 391, 70 N.W. 613; State v. Boomer, 103 Iowa 106, 72 N.W. 424. In State v. Mulhern, 130 Iowa 46, 106 N.W. 267, we held that, under Section 5276 of the Code, it was not necessary to return exhibits used before the grand jury, with the indictment. In State v. O'Malley, 132 Iowa 696, 109 N.W. 491, the question arose on a motion to set aside the indictment for the reason that certain exhibits which were before the grand jury were not returned with the indictment and filed with the clerk of the court. We referred to State v. Mullenhoff, supra, and State v. Boomer, supra, and said:

"The requirement that all exhibits be returned with the indictment and filed by the clerk was manifestly intended to cure the defect in the statute theretofore existing, and to meet the decision in the Mullenhoff case."

We held, however, in said case, that the failure to so return the exhibits was not a ground for motion to set aside the indictment. In State v. Ottley, 147 Iowa 329, 126 N.W. 334, the question came before us where, on motion to set aside the indictment, it was contended that an exhibit used before the grand jury was not filed with the clerk. We held that such failure to file was not a ground for setting aside the indictment, and said, by way of dictum:

"Nor would such failure render the note inadmissible in evidence. "

In State v. Howard, 191 Iowa 728, 183 N.W. 482, it appeared that a pistol used as an exhibit before the grand jury was offered in evidence, and the objection was made that it was not properly identified and filed in the office of the clerk with the minutes of testimony, as required by Section 5258, Code Supplement, 1913. The objection was overruled, and error predicated thereon. We said:

"The statute requiring exhibits used by the grand jury during its investigation to be filed in the office of the clerk with the minutes of the testimony is directory only."

We cited, in support of this statement, State v. Mulhern, supra, State v. O'Malley, supra, State v. Ottley, supra, and said:

"The failure to file the same in the clerk's office did not render them inadmissible" (citing State v. Mullenhoff, supra, State v. Boomer, supra, State v. Ottley, supra).

Appellant concedes that State v. Howard, supra, is apparently directly contrary to his contention in this case, and he argues that the same is erroneous, and should be overruled. Conceding that by its language Section 5258 provides that all minutes and exhibits relating to the indictment "shall be returned therewith and filed by the clerk of the court," and attached to the indictment, the question arises as to what is to be the result if this provision of the statute is not complied with. Code Section 5276 provides that the names of witnesses examined before the grand jury must be indorsed thereon, and that the indictment "must be, with the minutes of the evidence of such witnesses, presented to the court by the foreman in the presence of the grand jury, and all of the same marked filed by the clerk." It is to be noticed that, in Section 5276, no reference is made to requiring the exhibits to be presented to the court by the foreman of the grand jury, or to be filed. Turning to Code Section 5319, we find that a motion to set aside an indictment can be made upon various grounds, among which are:

"2. When the names of all witnesses examined before the grand jury are not indorsed thereon; when the minutes of the evidence of the witnesses examined before the grand jury are not returned therewith;"

We have held that, under this statute, where the names of the witnesses who were examined before the grand jury were not indorsed thereon, while a motion to set aside the indictment because thereof would lie, under Section 5319, the failure to so indorse the names of the witnesses was not a ground for excluding the testimony upon the trial of the case. State v. Flynn, 42 Iowa 164; State v. Fowler, 52 Iowa 103, 2 N.W. 983; State v. Story, 76 Iowa 262, 41 N.W. 12; State v. Craig, 78 Iowa 637, 43 N.W. 462; State v. Beal, 94 Iowa 39, 62 N.W. 657. These decisions were prior to the adoption of the Code of 1897 but were under the Code of 1873, Section 4337, which, in this particular respect, is to the same effect as the Code of 1897...