State v. Burzette

• Decision Date: 14 December 1928
• Docket Number: No. 38972.,38972.
• Citation: 208 Iowa 818,222 N.W. 394
• Parties: STATE v. BURZETTE.
• Court: Iowa Supreme Court

208 Iowa 818

222 N.W. 394

STATE

v.BURZETTE.

No. 38972.

Supreme Court of Iowa.

Dec. 14, 1928.

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

The defendant was prosecuted under an indictment charging him with murder in the first degree. The verdict found him guilty of murder in the second degree, and judgment was entered accordingly. The defendant has appealed. Affirmed.F. A. Ontjes, of Mason City, W. G. Henke, of Charles City, and Henry Curvo, Jr., of Clear Lake, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Roe Thompson, John A. Senneff, and William P. Butler, all of Mason City, for the State.

EVANS, J.

Morris Van Note, a subdirector of his school district, was on the night of March 13, 1926, shot and killed upon the schoolhouse ground of his district. The date was Saturday. It appears that three weeks prior to this date, some one had broken into and entered the schoolhouse, and had removed therefrom the window curtains and their fixtures. Because of this fact the deceased had been giving special attention to guarding the schoolhouse at week-ends against further depredation. He left his home, a mile away from the schoolhouse, some time after dark, and was not again seen alive. At about midnight the dead body was found upon the schoolhouse ground. An examination of the premises disclosed that the schoolhouse had been broken into, and that an oil stove, used therein for cooking purposes at noontime, had been removed therefrom, and had been carried out upon the schoolhouse grounds and abandoned there. Three exploded shells were found in close proximity to each other, indicating that a gun had been discharged at or about the place where the shells were discovered. An abandoned shotgun was found upon the ground nearby, but no shells had been discharged therefrom. The abandoned shotgun furnished the first clue to the defendant's connection with the killing. It was learned that the gun belonged to him.

The defendant was a single man, 40 years of age, who lived in a rented shack in the outskirts of the town of Clear Lake. The schoolhouse where the shooting had occurred was 4 miles northwest of Mason City, and was distant from the defendant's shack approximately 13 miles. The defendant was sought at his shack, but was not found there. He had fled during the night. A search of the shack was made, and there was found therein the window curtains and the fixtures that had been taken from the schoolhouse three weeks before. This defendant's parents lived in Clear Lake, and he himself had been reared in and about that town. He usually took his meals at the home of his parents. Since about March 1, a cousin, Melvin Burzette, formerly residing with his parents at Rudd, in Floyd county, took up his abode with the defendant in the shack. He was 22 years of age. Both of them left Clear Lake in an automobile on the night of the shooting, leaving no word to indicate their destination or their whereabouts. A few weeks later they were arrested in Tulsa, Okl., and were brought to Mason City. Both were charged with the killing. Melvin Burzette confessed his connection with the affair, and was used by the state as its witness in this prosecution against this defendant. The story of Melvin, which was accepted by the jury was in substance the following:

At about 7 or 8 o'clock on the evening in question the defendant proposed to go out driving, and asked Melvin to go along. They drove to Mason City, and from there to the schoolhouse in question. Melvin testified that he himself was ignorant of the purpose of the trip. The schoolhouse was on the west side of a north and south highway. The parties stopped their automobile on the west side of this highway, facing south. The defendant had placed in the automobile two shotguns. One was an ordinary short shotgun; the other is described as a Marlin repeating shotgun. It is also described as a pump gun, so constructed that the same action,which discharges an exploded shell, puts a new one in place. When they got to the schoolhouse, Everett advised Melvin that there was an oil stove in the schoolhouse, which he was about to take. He produced a wrench with which he broke the lock. He furnished Melvin with a flash-light and directed him to go inside and bring out the oil stove, while the defendant would stand guard with his repeating Marlin shotgun. This was the course pursued. Melvin carried the stove outdoors and within two or three feet of the car. This was at a point southeasterly from the southeast corner of the schoolhouse. At this stage Van Note came and was somewhere in the neighborhood of the northeast corner of the schoolhouse. He had a Colt revolver. He shouted and shot. As a result Melvin received a flesh wound. He ran to cover behind the woodshed, a short distance west of him. A fusillade of shots followed from revolver and shotgun, being approximately four in number from each one. The defendant called Melvin from his hiding place. At this point his testimony was as follows: “After I came from back of the woodshed, we left; didn't stay there very long. As we drove down the road, Everett said, ‘I think I got him.’ He told me to keep my damn mouth shut. Everett is a great deal larger man than I am. He said something about receiving a wound when we were on our way to Clear Lake. He said he got hit in the left hand.”

When the parties first arrived at the schoolhouse, both guns were taken out of the automobile. The short shotgun was left at the automobile, with its butt upon the ground and its upper end resting on the right rear fender. In the hurry of the get-away it was not picked up; nor was the oil stove carried away. The two men drove back to the shack at Clear Lake and equipped themselves from the shack with some conveniences and drove away into the night. They drove west and north up through Minnesota, and to South Dakota and Wyoming, and back again to Spearfish, S. D., and from there south to and through Nebraska and Kansas, and into Oklahoma, where the flight came to its end by their arrest. Their automobile had broken down at Sundance, Wyo. This was the occasion of their working back into Dakota and south. At this stage they were traveling under difficulties--sometimes walking, sometimes boarding freight trains, and sometimes being taken by accommodating automobilists. At Hastings, Neb., they stole an automobile, which they used in their traveling from that point, and which was in their possession, when arrested at Tulsa.

The case was twice tried in the district court; the first trial resulting in a disagreement of the jury. The defendant became a witness at each trial. He testified that he was not at the schoolhouse at all, and had nothing whatever to do with the killing; that Melvin took the car and drove out that night, and came back later wounded; that he represented himself as having been wounded in a fight with some boys. The defendant's explanation of the flight was that he had gone with Melvin at his request, and because he himself also had intended to go to Portland. He denied any connection with the stealing of the automobile at Hastings, and testified that he separated from Melvin at Grand Island, Neb., and afterwards met him by mere accident in the city of Wichita; that at that time Melvin had the stolen automobile, which he claimed he bought and paid for by wiring for money from home.

[1] The verdict of the jury indicates that the jury disbelieved the story of the defendant. It carried great improbabilities in its first recital. It put the defendant to a special disadvantage that he had to recite the story a second time. It so happened that, at points between Grand Island and Hastings, there were two farm homes where, on different dates, the two wanderers, looking for work, had been kindly received and harbored and fed. Melvin pointed out these places to the state officials, and witnesses were brought from these homes, who testified at the second trial. This testimony made it necessary for the defendant to testify at the second trial that after they had left Grand Island and had traveled a long distance in the direction of Hastings, they went back to Grand Island, though for no apparent purpose. This is a sufficient indication of the nature of the conflict of evidence between these two persons. For the purpose of our consideration of the appeal, we shall have little occasion to deal with this conflict. It was required that the testimony of Melvin, as an alleged accomplice, be corroborated in order to sustain the conviction.

The record in the case is very voluminous and the briefs are very extensive. The appellant assigns 112 errors. These, with their supporting brief points cover 112 printed pages. Manifestly it will be impracticable for us to deal with these in detail.

[2] I. The first error assigned is upon the order of the court overruling a challenge to the juror, Majors. This juror had read newspaper accounts of the former trial. He testified to having formed an opinion based upon the newspaper reports. He was examined and re-examined repeatedly by each side respectively, and was likewise examined by the judge. Though the result of his examination by defense counsel, and the result thereof by counsel for the state and the judge, appear contradictory, it is not so difficult for the experienced observer from the bench, to see the consistency of the juror's answers. In response to the examination of defense counsel, the juror said he had such an opinion that would require evidence to remove.The state of mind thus described is incorporated in the question. It is a stock question, and is too hoary to be condemned. It must be said, nevertheless, that it serves little function in ascertaining the real state of mind of a juror. The question calls for an affirmative answer and always receives one. The problem is then laid upon the juror to harmonize such answer with other answers, to the effect...