State v. Campbell, 41603.

• Decision Date: 12 December 1933
• Docket Number: No. 41603.,41603.
• Parties: STATE v. CAMPBELL
• Court: Iowa Supreme Court

217 Iowa 848

251 N.W. 717

STATE

v.CAMPBELL

No. 41603.

Supreme Court of Iowa.

Dec. 12, 1933.

Appeal from District Court, Johnson County; R. G. Popham, Judge.

Defendant was tried on a charge of murder in the first degree, convicted of murder in the second degree, and, from judgment imposing life sentence in the penitentiary, he appealed.

Reversed.

Paul Toomey, of Iowa City, for appellant. Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and F. B. Olsen, Co. Atty., of Iowa City, for the State.

ALBERT, Chief Justice.

To a fair understanding of the question involved herein, the following facts are gleaned from the record:

The defendant and one Annabel Gross had been keeping company, and, at the time in question, he called at the house where she was and asked her to go with him. She refused. He then said, in substance, that he would “end it all,” and reached for his revolver. She started to tussle with him, and the revolver was discharged, and she sat or fell on the bed. She was hit by two bullets from the revolver, and later died.

The only question raised in the case is as to the correctness of the following instructions: “Evidence has been introduced in this case tending to show that at the time and place alleged in the indictment, the defendant was intending to commit suicide, and that at said time and place he drew his revolver from his pocket with the intention of accomplishing that purpose; that Annabel Gross, seeing such attempt about to be made, interfered and tried to prevent the defendant from committing suicide, and that a struggle ensued between them, and that in the struggle the defendant's revolver was discharged and that in that way the fatal wound was inflicted upon the said Annabel Gross. You are instructed that in the eye of the law suicide is an offense; it is an unlawful act; and if a man, with a deadly weapon, undertakes to take his own life he is doing an unlawful act, and if in the commission or attempted commission of that act, he takes the life of an innocent party, then in the eye of the law that is murder. You are therefore instructed that if you find from the evidence beyond a reasonable doubt, that at the time and place alleged in the indictment, the defendant was intending to commit suicide, and that he did then and there attempt to commit suicide, then he was guilty of attempting an unlawful act, and if you find in the manner herein instructed that a struggle ensued between the defendant and the said Annabel Gross, in which the said Annabel Gross attempted to prevent the defendant from committing suicide, and that in said struggle the defendant, while attempting to commit suicide, discharged his said revolver into the body and person of the said Annabel Gross, then and there, inflicting upon the body and person of the said Annabel Gross a mortal wound, of which mortal wound the injury so inflicted she, the said Annabel Gross, then and there did die, then the said defendant was guilty of murder.”

[1][2][3] It is first urged that an attempt to commit suicide is not an unlawful act under the law of this state. Neither the attempt to commit suicide nor suicide is a prohibited act under the Code of this state. The question, therefore, resolves itself into what is the meaning of the words “unlawful act” as used in this instruction. Webster's New International Dictionary defines ““unlawful” as follows: “Not lawful; contrary to law.” “That which is contrary to law.” Black's Law Dictionary. The same definition is given in Rawle's Edition of Bouvier's Law Dictionary. “Unlawful implies that an act is done or not done as the law allows or requires.” Anderson's Law Dictionary.

It is apparent from these definitions that an act, to be unlawful, must be contrary to law. This definition presupposes that there must be an existing law, else the act could not be contrary to law.

It is true that at common law, under an act of Parliament, suicide was a felony, and the property of the felo de se was forfeited to the crown, and he was ignominiously buried in the public highway and a stake driven through his body. Such a provision does not exist under the Code of Iowa. It is true that in some states the attempt to commit suicide is made a crime and is punishable as such, but unless so made by statute, suicide is not an unlawful act, and it is so held by the Supreme Court of New York in the case of Darrow v. Family Fund Society, 116 N. Y. 537, 22 N. E. 1093, 6 L. R. A. 495, 15 Am. St. Rep. 430. There being no statute in this state prohibiting suicide or the attempt to commit suicide, under the foregoing definitions it cannot be held that the attempt to commit suicide, charged against the defendant in this instruction, was an unlawful act.

Two cases are cited, however, which deserve some attention.

The first is Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109. The fact situation in that case is almost identical with the fact situation in the present case. The common-law rule of England is there discussed, and prior statutes and decisions of the Massachusetts Supreme Court are also discussed, and it is held that suicide continues to be malum in se and a felony by reason of certain provisions of their statutes. It is then said: “Since it has been provided by statute that ‘any crime punishable by death or imprisonment in the state prison is a felony, and no other crime shall be so considered,’ it may well be that suicide is not technically a felony in this Commonwealth. * * * But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal. Every one has the same right and duty to interpose to save a life from being so unlawfully and criminally taken, that he would have to defeat an attempt unlawfully to take the life of a third person. * * * And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter. The only doubt that we have entertained in this case is, whether the act of the defendant, in attempting to kill herself, was not so malicious, in the legal sense, as to make the killing of another...