State v. Cessna

• Decision Date: 23 June 1915
• Docket Number: No. 30177.,30177.
• Citation: 170 Iowa 726,153 N.W. 194
• Parties: STATE v. CESSNA.
• Court: Iowa Supreme Court

170 Iowa 726

153 N.W. 194

STATE

v.CESSNA.

No. 30177.

Supreme Court of Iowa.

June 23, 1915.

Appeal from District Court, Hamilton County; R. M. Wright, Judge.

The defendant was accused of assault with intent to murder, and was convicted of an assault with intent to do great bodily injury. He appeals. Reversed.D. C. Chase and R. G. Remley, both of Webster City, for appellant.

George Cosson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and O. J. Henderson, Co. Atty., of Webster City, for appellee.

LADD, J.

The defendant, with his family, resided in the second story of a flat, and at about 9 o'clock in the evening of October 29, 1913, Rufus E. Nelson, sheriff of Hamilton county, with his deputy, C. D. Carl, night policeman, Bert Williams, and Herman Rutledge, entered from the hallway a room about 18 feet long and 12 feet wide. Immediately thereafter, defendant came in through a door at the opposite corner and, according to the testimony of Nelson, said, “It's me you are looking for, is it?” and pointed an army gun at Carl, who cried, “Cessna, don't shoot.” Nelson moved a little toward him, when he turned the gun on Nelson, and, as some of the witnesses say, the hammer clicked as though he had pulled the trigger. He was then overpowered, but, as is said by witnesses for the state, told his son to get the gun and “shoot these fellows,” and also asking for a knife, declaring, “I will cut the guts out of the g_____ d_____ s_____ of a b_____ of a Norwegian.” No information had been filed against the defendant, and he was not informed by the sheriff or any other of those present that they were officers. The evidence on behalf of the state tended to show that the defendant was not intoxicated, and Robertson, who was visiting at the place with defendant's father-in-law, testified that, before the officers came, defendant had said that, “If that marshal comes up here to-night, I am going to kill him. I am going to spill his blood on this floor.”

It seems that Mrs. Cessna had become frightened because of defendant having been drinking during the day, and had called the night policeman. On the other hand, defendant testified that, on the way home from doing carpenter work the day previous, he had noticed some geese flying, and concluded to take his rifle with him to see if he could get some of them; that he cleaned up the gun, loaded it with five shells, put two quarts of whisky in his suit case with some tools, but, as “it was kind of stormy,” concluded not to go out, and as he testified:

“About 10 o'clock that morning, when I found that I wasn't going back to work, I opened one of the quart bottles from my suit case and began drinking. About 2 o'clock I lost that one, misplaced it, and so I opened the other one.”

He testified further that he did not know how long he continued drinking, whether he ate dinner or supper or not, and that he had no recollection whatever of the sheriff and those with him having come to his house or entered the room or of anything whatever that occurred there, and he denied having made the threat testified to by Robertson.

[1] I. Several questions are raised in the record, and the first of these is that the evidence did not justify a conviction of the particular offense of assault with intent to inflict great bodily injury; it being contended that, as the gun was pointed at the head of the sheriff, he must have intended to kill, if he entertained any intent, and therefore could not have been guilty, as found in the verdict. But the sheriff testified that “he pulled the gun onto Carl and onto me, and in the same position he had it on Carl,” and that “he pulled the gun onto Carl.” Carl testified that the gun was pointed at Nelson's head or upper part of his body when he snapped the trigger, so that the jury was not required to find that it was aimed at the sheriff's head, as assumed by appellant. There was room, then, to find his purpose as the jury found, and the defendant cannot well complain if the jury was lenient in convicting him of a lower offense than it might under the evidence.

II. Appellant complains of the refusal to give the following instruction:

You are further instructed that if you find that the sheriff and officers summoned a posse of citizens, and with them they went to the home of defendant, and while there, without any warrant for his arrest, and while defendant was in no manner violating the law, and if, without first making themselves known to defendant and...