State v. Cruse, 57149
| Decision Date | 16 April 1975 |
| Docket Number | No. 57149,57149 |
| Citation | 228 N.W.2d 28 |
| Parties | STATE of Iowa, Appellee, v. Edward A. CRUSE, Appellant. |
| Court | Iowa Supreme Court |
James A. Campbell, of Peters, Campbell & Pearson, Council Bluffs, for appellant.
Richard C. Turner, Atty. Gen., Dorothy L. Kelley, Asst. Atty. Gen., and Lyle Rodenburg, County Atty., for appellee.
Heard before MOORE, C.J., and RAWLINGS, UHLENHOPP, HARRIS and McCORMICK, JJ.
Defendant, Edward A. Cruse, appeals from judgment on jury verdict finding him guilty of murder in the second degree. We affirm.
Cruse was charged by county attorney's information with having committed murder in violation of Section 690.1, The Code 1973.
January 8, 1974, trial commenced. After the State had rested defendant unsuccessfully moved for a directed verdict. At close of all evidence a like motion was also overruled. The case was submitted to the jury and verdict returned as aforesaid.
Our examination of the record discloses this instantly involved factual situation.
At all times here concerned Mrs. Bertha Nelson owned residential property in Council Bluffs. She did not regularly reside there but rented the same to her two daughters, Theresa Parks and Mary Love. The latter's husband, Wayne, also resided there. Defendant was a frequent guest and had arrived at the aforesaid residence Saturday, October 27, 1973, for a weekend visit with Theresa Parks.
At approximately 4:00 p.m., Sunday, October 28th, Wayne Love (decedent) was resting in a bedroom when a phone call came for him. Mary Love tried to awaken her husband but was seemingly unable to do so. Shortly thereafter Love entered the kitchen where his wife, Mrs. Nelson and Theresa were conversing. Love stated he had been lying in bed feigning sleep and heard the women ridiculing his size. Love called the women names and swore at them, talked loudly and pounded the table. Theresa started crying.
Defendant Cruse, then asleep in the livingroom, was awakened by the noise. He entered the kitchen and inquired as to what was taking place. Upon being advised to the effect Love had called Theresa a 'bitch' defendant opined Love should apologize. At that point Love 'jumped up' and said to Cruse 'I have been wanting a piece of your--anyway.' Defendant stated he did not want trouble and began moving away. Mrs. Nelson and her daughter unsuccessfully endeavored to placate Love. Defendant backed from the kitchen into the livingroom with Love following him. The two men were approximately four or five feet apart. Although unarmed, Love was a man of imposing size (about 350 pounds) and strength. Having moved backward into a corner of the livingroom with his back to the television set, defendant reached to the rear and in so doing knocked a picture off the TV. He testified his hand there came to rest on a .38 caliber revolver. Cruse then pointed the gun at Love. The latter continued moving forward and said 'go ahead and shoot' or 'you got the Goddam thing now * * * you are going to have to use it.' At this juncture the record discloses defendant testified, in relevant part:
After having fired the revolver defendant placed it on a highboy in the bedroom. Cruse claims he then, for the first time, noticed the weapon had only one shell in it. The gun was normally loaded and kept in a bedroom dresser drawer.
Cruse now contends trial court erred in overruling his directed verdict motions because (1) circumstantial evidence was improperly considered in determining the State had met its burden of showing defendant did not act in self-defense, (2) even if circumstantial evidence was properly considered, the State did not produce sufficient evidence to create a jury issue as to self-defense.
I. At the threshold it is appropriate to note we have recently held error cannot be predicated on failure to grant a directed verdict at close of the State's case where additional evidence is offered. See State v. Valde, 225 N.W.2d 313, 317 (Iowa 1975); State v. Hansen, 225 N.W.2d 343, 348 (Iowa 1975). Here, however, Cruse did renew his motion on presentation of evidence presented after the State had rested and thus preserved error, if any, as to grounds properly thereby asserted.
II. This court has said these four elements must be present in order to justify homicide in self-defense:
'(1) the slayer must not be the aggressor in provoking or continuing the difficulty that resulted in the homicide; (2) he must retreat as far as is reasonable and safe before taking his adversary's life, except in his home or place of business; (3) he must actually and honestly believe he is in imminent danger of death or great bodily harm and that the action he takes is necessary for self-preservation--this danger need not be real, but only thought to be real in slayer's mind, acting as a reasonable prudent person under the circumstances; (4) he must have reasonable grounds for such belief.' State v. Badgett, 167 N.W.2d 680, 683 (Iowa 1969).
See also Code §§ 691.1, 691.2.
Unquestionably, self-defense need not be formally invoked or specially pled. See State v. Vick, 205 N.W.2d 727, 731 (Iowa 1973).
And when such defense has been raised in a case the prosecution must establish nonexistence thereof beyond a reasonable doubt. See State v. Vick, Supra; State v. Fields, 199 N.W.2d 144, 146 (Iowa 1972); Annot., 43 A.L.R.3d 237.
If there is substantial evidence upon which a jury could reasonably find any of the above stated self-defense elements were lacking, then the overruling of defendant's directed verdict motions cannot be deemed error....
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