State v. Butler

• Decision Date: 08 March 1910
• Citation: 125 N.W. 196,146 Iowa 285
• Parties: STATE v. BUTLER.
• Court: Iowa Supreme Court

146 Iowa 285

125 N.W. 196

STATE

v.BUTLER.

Supreme Court of Iowa.

March 8, 1910.

Appeal from District Court, Hamilton County; C. E. Albrook, Judge.

The defendant was convicted of assault with intent to commit manslaughter, and appeals. Reversed and remanded.

Evans, J., dissenting.

D. C. Chase and G. D. Thompson, for appellant.

H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State.

SHERWIN, J.

The indictment charged the defendant with an assault on Louis Young with intent to commit murder. At the time of the alleged assault, Louis Young was a member of the police force of Webster City, and the defendant was a resident of said city. At about 5 o'clock in the morning the defendant left his residence for the purpose, as he says, of taking an early train out of the city. He was going in the direction of the depot, accompanied by another man, when they met Young and a deputy sheriff of the county, Homer Howard, at a street intersection in the business part of the city. Young was then on duty, as we understand the record. The fight between Young and the defendant commenced at that place, and in the following manner, according to Young's testimony:

Young testified for the state: “Mr. Howard was with me. We saw Mr. Butler somewhere near Blankenbueler's building. A fellow by the name of Chas. Wedding was with him. They were walking west on the south side of the street going toward the crossing. When I and Mr. Howard got to the crossing, we stopped, and Mr. Wedding and Mr. Butler came to the crossing to about where we were, and Mr. Howard spoke to him, and he said, ‘How are you Homer?’ Then he said to me: ‘Mr. Young, I have something to say to you. What have you been saying about my place?’ I told him that the best thing for him to do was to go home or I would arrest him. He said there couldn't nobody take him home, or some remark like that. I said, ‘The best thing for you to do is to go home.’ He had something in his hand, and Mr. Howard made some remark that he had something in his hand. He said he hadn't anything in his hand. I said: ‘You have something in your hand. Give it up to Homer.’ And then I said, ‘If you do not give it to Homer, I will arrest you.’ He said, ‘There can't no officer arrest me.’ He didn't start towards me. I started at Butler with a club, but I missed him and did not hit him until he cut me. He struck me before I hit him. I busted the end of the billy a little and knocked him down to his knees. Then he got up. He struck me after he got up, and I struck him twice and knocked him partway down. Homer Howard told me not to hit any more.”

Homer Howard testified for the state as follows: “Butler and Wedding came right up and stopped. Butler walked up just a couple of feet from Young. He stepped back. He said, ‘I have something to say to you, Young.’ Young said, ‘What is it?’ Butler said, ‘What have you been talking about me and my place?’ Young told him he had better go home. Young asked him what he had in his hand. I think perhaps Young told me to grab his hand, and Butler turned and said: ‘Howard, you leave me alone. Don't you touch me.’ Young said: ‘He has got a knife. If you don't put the knife up, I will hit you.’ Butler said he was not afraid of him or his club either. Young said he wasn't afraid of him. Butler told him to leave him alone and there would be no trouble. Then Young struck his first blow and hit Butler on the arm, and after that he struck him two or three times on the head or neck. He went down on his knees once or twice.”

The defendant's version of the transaction is as follows: “They were standing on the crossing when I came up. Mr. Howard spoke to me, and I spoke to him. I said: ‘Mr. Young, I have something to say to you. I would like to know what you have been saying about my place.’ He said, ‘I will throw you in,’ and started after me with his club. I stepped back and said, ‘Keep your hands off of me and there will be no trouble.’ He kept coming with his club and struck me. I threw up my arm, and he struck my arm and paralized it. Then he called to Mr. Howard to take hold of me.”

Another witness for the state testified that he saw the encounter, and gave a somewhat different account of it; but it is shown by the weight of the evidence that he was greatly mistaken as to principal facts and was not in fact close enough to the parties to know as much about the transaction as the witnesses whom we have quoted. Young himself testified that the defendant was not intoxicated at the time in question, and that his only reason for arresting him was because he (the defendant) was looking for trouble. Unless it be a crime, or a breach of the peace, for a citizen to go quietly from his home to a public railroad station in the nighttime, the defendant was rightly on the street at the time in question. His question to Young was certainly not a breach of the peace, and hence furnished no warrant for his arrest, or for any interference with his personal freedom. It was Young's duty to maintain peace and good order; but,...