State v. Christie

Decision Date10 June 1952
Docket NumberNo. 47882,47882
Citation243 Iowa 1199,53 N.W.2d 887
CourtIowa Supreme Court

Verne Lawyer, and James McDowell, J., of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Clyde E. Herring, County Atty. of Polk County, all of Des Moines, for appellee.

SMITH, Justice.

On the morning of Friday, June 9, 1950, the body of Vidar Vernon Bergman (aged 43 to 45 years) was found slumped over in the left front seat of an automobile near the Des Moines river in the city of Des Moines. An autopsy revealed he died as the result of a gunshot wound. The bullet had penetrated the right side of his skull and was lodged on the opposite side just behind the left ear. The facts are not materially in dispute as to the cause of death and there is ample evidence that defendant (aged 21 years) fired the fatal shot. His own statement to one witness made the afternoon or evening of June 8; his statement to officers June 10 after his arrest, reduced to writing, signed by himself and by three witnesses; and corroborating testimony as to his presence with decedent in the car shortly before the shooting and other circumstances, made the question of his commission of the act at least clearly one for the jury. It is not seriously questioned. The defense instead relies on claimed involuntary intoxication and irresponsibility or insanity due to use of drugs; and to claimed lack of proof of deliberation, premeditation and specific intent to kill. The jury found defendant guilty of first-degree murder and recommended life imprisonment.

Much time was spent at the trial over the admissibility of exhibit 28, the signed statement referred to above. But it was admitted and no error is predicated upon that ruling. There was some controversy between attorneys as to whether it amounted to a confession. The court submitted it to the jury with an explanation of the conditions necessary to be found to exist before it be considered. No complaint is made of that instruction.

In that statement defendant admitted that on June 5, 1950, (Monday preceding Bergman's death) he broke into a garage and took a 32 caliber nickel-plated, 5-shot revolver; that two days later (Wednesday the 7th) he met Bergman at a tavern; that they were together all that night; that about 1:30 A. M. Thursday, the 8th, they broke into a drug store and took a quantity (56 cartons) of cigarettes, two bottles of pheno barbital, a bottle of quinidine sulfate, $9 in change from the cash register, a pair of rubber gloves and a gallon can of Kem Tone, Stratford Green.

He says they then drove around for a time and finally parked on the levee, drank for a time, went to sleep and woke about 9 A.M. They drove around, sold most of the cigarettes and threw the pheno barbital tablets away. (The witness Prine, hereinafter referred to, says defendant was taking pheno barbital tablets when they talked several hours after the shooting). Bergman bought a pint of whiskey at the liquor store and they drove back to the levee. The rest of the statement discloses defendant's version of the shooting and can best be set out in question and answer form:

'Q. After driving back to the levee what did you and Bergman do then? A. He parked there about the middle of the levee which is about one block East of 9th Street on the North side of the river and we sat there drinking. We got to the levee about 1:30 and we sat there drinking until about 2:30. About an hour drinking. And we got into an argument about I had the money on me--all of it--and he wanted me to give one-half of it to him right now. I said I would keep it because that way he wouldn't run out on me. So we argued. I had the gun in the glove compartment. I picked it up real quick and when I shot it it was 4 or 5 inches from the right side of his head.

'Q. Where was Bergman in the car at the time you shot him? A. He was in the driver's seat. I was sitting on the right-hand side of the front seat.

'Q. How many times did you shoot him? A. Just once.

'Q. Is this the same gun that you stole from the Roth Garage? A. Yes.

'Q. After shooting Vidar Bergman what did you do? A. I sat there 5 or 6 more minutes--took a couple more drinks out of the bottle and took the gun with me and walked up to the levee towards Southeast 14th Street. I was so drunk I couldn't see which way to go. I saw a guy coming by and asked him which way was to the East Side. I walked with him to East 15th & Walnut at the barber shop. I looked at the clock and it was exactly 3:00 o'clock. I got a hair cut and a shave and I just walked down town and I went into Katz Drug Store bought this T-shirt that I have on now. I went to some restaurant and had something to eat. Then I walked around some more. Then about 6:20 I called Donald Prine and I told him what I did on the phone.' (Prine and defendant had been friends since they were in school together at the Iowa Training School for boys at Eldora.)

The statement also says he later met Prine. 'I showed him the gun that I used to shoot Bergman.' After walking some distance they arrived at the Grand Avenue bridge. 'I got to the middle of the north side of the * * * bridge and gave the gun a throw into the river.' Prine denied having seen the gun or knowing its whereabouts at time of trial. He testified defendant told him he threw the gun off the Grand Avenue bridge.

Defendant's statements to Prine (as testified to by the latter as a witness for the state) do not materially contradict his signed statement. They indicate there was some argument between defendant and decedent but the witness disclaims knowledge of what the argument was about. He said defendant told him Bing (decedent) stuck out his hand like that and said 'Well, we are still friends, aren't we?' And Harold (defendant) said 'the next thing he knowed he shot him'; also that defendant said 'he didn't think he was dead, didn't really realize what he did, and said there was blood running from his ear and that he kind of made a funny noise * * *.' The witness testified: 'Q. Now did he or did he not say that he was mad at Bing when he shot Bing? A. Yes, at that time he was, they was in an argument.'

Prine's testimony as to his conversation with defendant after the shooting emphasizes defendant's intoxicated condition at that time (several hours after the shooting) and defendant's description of his own condition as to being drunk and confused at the time of and after the shooting. The witness also said defendant told him the shooting was an accident.

In addition to defendant's signed statement and the testimony as to his conversation with Prine, there was testimony of two witnesses who first saw the car parked with two men in it and some time later saw it with but one, lying back as if asleep, one said, or slumped over, according to the other. The first witness identified the man on the right, who later was not there, as defendant. There was also the testimony of police officers and the deputy coroner as to details when the body was removed. Defendant argues 'the state's case relative to what occurred at the time of the shooting * * * is composed wholly of the defendant's statements * * *.' That is not entirely accurate. It disregards the circumstantial evidence in the case above referred to.

I. The distinctions between murder and manslaughter, and between first and second-degree murder are familiar. Any unlawful killing with malice aforethought is murder. State v. Leib, 198 Iowa 1315, 201 N. W. 29. To constitute murder in the first degree there must be the additional elements of deliberation, premeditation and intent to kill. State v. Sipes, 202 Iowa 173, 209 N.W. 458, 47 A.L.R. 407; Fouts v. State, 4 G.Greene 500.

Defendant contends the court erred in submitting the question of first-degree murder and also in failing to sustain motion for directed verdict as to second degree. The argument concedes that 'proof of intentional homicide without circumstances of mitigation or excuse affords the presumption of malice and therefore of murder' but insists 'that presumption is of murder in the second and not the first degree.' The argument then proceeds: 'we are permitted to say that one who shoots and kills another intended the fatal result' but we may not go further and say that having thus found the intent we may therefrom draw the inference of deliberation and premeditation. Numerous cases are cited. None seems to involve sufficiency of the evidence to warrant submission of a charge of murder except State v. Wilson, 234 Iowa 60, 11 N.W.2d 737; State v. Leib, supra, and State v. Borwick, 193 Iowa 639, 187 N.W. 460. The others are either not murder cases at all or were decided on errors not including insufficiency of the evidence to go to the jury.

The errors assigned on this proposition do not complain of the instructions. The contention is that neither first nor second-degree murder should have been submitted.

In the Leib case, supra [198 Iowa 1315, 201 N.W. 31], we held there was insufficient evidence to warrant submission to the jury of the issue of first-degree murder. True, the opinion points out that 'the fact of the killing and the manner in which it was done comes wholly from the lips of appellant.' But that is not assigned as the reason for the ruling. Defendant's statement in that case was to the effect that the men were fighting, that they 'tussled for possession of a shotgun, and that the gun went off and appellant struck (decedent) over the head with the gun barrel.' There was evidence the men had been drinking. There is nothing here to indicate violence, actual or threatened, on Bergman's part.

In the Borwick case, supra [193 Iowa 639, 187 N.W. 462], circumstances were entirely different and quite complicated. It was held the undisputed facts were such as to 'rebut the inference or presumption of malice which might otherwise arise from the mere use of a deadly weapon.' Without stating...

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