State v. Campbell

• Decision Date: 16 December 1931
• Docket Number: No. 40701.,40701.
• Citation: 213 Iowa 677,239 N.W. 715
• Parties: STATE v. CAMPBELL.
• Court: Iowa Supreme Court

213 Iowa 677

239 N.W. 715

STATE

v.CAMPBELL.

No. 40701.

Supreme Court of Iowa.

Dec. 16, 1931.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

An indictment for murder was returned by the grand jury against the defendant. Upon trial, he was found guilty of the crime of manslaughter and judgment entered accordingly. The defendant appeals.

Affirmed.George A. Wilson and Tom K. Murrow, both of Des Moines, for appellant.

John Fletcher, Atty. Gen., and Carl S. Missildine, Co. Atty., and Alexander M. Miller, Asst. Co. Atty., both of Des Moines, for the State.

WAGNER, J.

The defendant Clarence Campbell and Kenneth Sonderleiter were jointly indicted for the crime of murder of Samuel Dushoff, familiarly known as Jack Harris, and hereinafter the deceased will be referred to by the latter name. Campbell was given a separate trial, and found guilty of the crime of manslaughter.

Before proceeding with the complaints of the defendant, we deem it advisable to briefly refer to the facts, as shown by the record, leading up to the time of the shooting of Harris. We are abidingly satisfied that Harris lost his life as the result of a shot from a revolver by the defendant Clarence Campbell on the evening of April 26, 1930. It is shown by a waybill introduced in evidence that on April 21, 1930, a shipment, consisting of two crated drums, was consigned to one therein named as J. A. Trumbull. These drums, each having a capacity of about fifty gallons, were delivered by the clerk of the Railway Express Company to one Hanlon, who was engaged in the transfer business. They were billed as “compound” and were delivered by Hanlon at “Dickerson's place” at the suggestion of Harris. The defendant Campbell resides in Chicago. Dickerson, at that time, resided at 709 West Thirty-Second street, Des Moines, which is about three and one-half blocks north of Ingersoll avenue. About 2 o'clock in the morning of April 26th, Campbell and two others appeared at the Dickerson home. The Dickerson family were in bed. There was a knock at the door, and the housekeeper responded to the alarm and was falsely told that they were police officers. In this manner, they gained admittance to the home. The housekeeper informed Dickerson, who then appeared in their presence. Dickerson testified that he did not know any of them at that time; that while Campbell stood guard over him, the other two went down into the basement, where they remained ten or fifteen minutes and then came from the basement to the main floor of the house, and the three caused him to leave his home and enter an automobile; that the defendant Campbell and he occupied the rear seat and the other two men the front seat of said conveyance; that, as they proceeded, another car was following in close proximity; that they took him out on University and Sixty-Fifth street, where he was caused to get out of the car and they informed him they were going to throw him into the coal mine, but didn't do so, and took him back into the car and drove further out to about Seventy-Second street, at which place they told him they were going to hang him to a tree.

“Q. And had they said anything to you up to that time what they wanted to take you out for? A. Wanted to know where my plant was.

Q. What did you tell them when they said ‘where is your plant’ or wanted to know where your plant was? A. I told them I didn't have any.”

He further testified that at this place they threw a rope over a limb and started to put the other end around his neck; that they asked him where his plant was, and he told them he didn't have any; that they put him back in the car, saying “they were going to take me out along the road and shoot me in the head”; that they then took him back on Hickman, stopped the car, “and told me to get out, they were going to shoot me in the head. I started getting out.” That a gun was fired and he was struck in the back part of the head, leaving a mark which was visible at the time of the trial in September, 1930. He testified: “I do not know whether I got hit with a gun or whether I got shot there.” That they then blindfolded him and took him to a basement--where he does not know. That after he had gotten to the basement, the defendant Campbell asked him to call Jack Harris; that he used the telephone and called Harris' home and talked to the wife of Harris; that two of the parties stayed with him and the rest left, being gone about two and one-half hours, when they returned, saying they could not find the Jew (presumably Harris); that they then took him to Thirty-First street, just south of Grand avenue, where they released him; that he then removed the blindfold from his eyes and soon met Mrs. Jack Harris, who drove him to the Harris home at 217 Terrace drive. Mrs. Harris testified that a car, in which Sonderleiter and two other gentlemen were riding, stopped her at Thirty-Second street; whether before or after she picked up Dickerson is not shown by the record.

There were no further developments in the case, as shown by the record, until about 4:30 or 5 o'clock that evening, when Sonderleiter and Campbell called upon Hanlon, who was engaged in the transfer business. Sonderleiter said to Hanlon: “You got some stuff from the American Express Company, where did you take it?” And Hanlon answered: “I gave him the address, then they left. I found out later it was Dickerson's place.” Dickerson testified that he did not hear from Campbell during the day, but about 8 o'clock in the evening Campbell called him by phone and asked him “if Jack was with me and I said yes, and hung up the phone. He called up about fifteen minutes later, Jack answered the phone and after answering the telephone, Jack said ‘come on let's go down to 31st and Ingersoll.’ We went down to 31st and Ingersoll in Jack Harris' car.”

The Brown Drug Store is in the northeast Corner of the intersection of Ingersoll avenue, running east and west, and Thirty-First street running north and south. The entrance to the building is in the southwest corner. It is shown that Campbell entered the drug store and asked permission to use, and did use, the telephone; that he then bought a couple of cigars and stepped out onto the porch or entrance, with a gun in his hand. It is shown that a car was standing in Ingersoll avenue near the drug store, facing west. In response to the telephone call made by the defendant, three individuals, consisting of Harris, his brother, and Dickerson came from the Dickerson home in Jack Harris' car, coming down Thirty-First street from the north. Jack Harris was driving and the rear seat was occupied by his brother and Dickerson. Jack Harris was armed with a revolver and Dickerson had both a revolver and a shotgun. The Harris' car was stopped to the north of the intersection and on the opposite side of the street from the drug store. When the car stopped, the battle began. There is testimony from which the jury could well find that the defendant fired the first shot. There can be no doubt that he fired two shots. Shots were also fired by the occupants of the Harris car, the defendant receiving a shot in the eye from the shotgun in the hands of Dickerson. Just about this time, the car standing near the drug store moved in a westerly direction and there was a shot coming from that car, which presumably hit the top of the radiator shell of the Harris car, as there is a dent there, so indicating, a photograph of which was introduced in evidence. Harris got out of the left side of the car and his brother and Dickerson out of the right side. Harris was shot immediately after, or in getting out, and dropped by the side of the car. The bullet entered the right scapula, passed through the spinal column, severed the spinal cord at about the sixth segment, and after his death was found in the left thoracic cavity. The wound from the shot was the cause of his death, which occurred on April 28th. After the defendant was wounded, he retired to the drug store and entered the basement, where he was found by an officer who soon appeared upon the scene. The defendant surrendered to the officer his gun, which was a 38-caliber revolver, and had in it two fired shells and four which were unfired.

We will now consider the complaints of the appellant. It is shown that in the testimony of Brophy, taken before the grand jury, he is a detective in the city of Des Moines. He testified before that body: “I took a statement from James Dickerson, we have two statements from James Dickerson, one, the long one was taken by myself and Detective Miller, it was taken down by Irene Rinker in shorthand and transcribed and signed by James Dickerson in our presence. After it was transcribed he read the statement over in our presence and signed it in our presence, the other is a short one taken by Pedersen and Paul Castelline, I did not witness the taking of that statement or signing of it. I took another statement from William Dushoff, that is Jack Harris' brother. He also made two statements, one a short statement taken by Inspector Pedersen and Paul Castelline which I did not witness the other taken by myself and Detective Miller. Miss Rinker took that statement and transcribed it and he read it over and signed it in my presence. These are both copies of those statements.”

The testimony before the grand jury also refers to signed statements signed by Fuller, the defendant, Sonderleiter, and his wife, and to an unsigned statement made by Campbell.

[1][2] The defendants Campbell and Sonderleiter filed an application, asking that an order issue, directing the county attorney to place on file in the office of the clerk the aforesaid statements and furnish counsel full, true, and complete copies thereof. This application was resisted by the county attorney, and in his resistance he showed that, at the time of the grand jury investigation, said body had under consideration, not only the charge against defendants Campbell and...