State v. Davis
Decision Date | 13 December 1929 |
Docket Number | 39813 |
Parties | STATE OF IOWA, Appellee, v. WALTER DAVIS, Appellant |
Court | Iowa Supreme Court |
Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.
Defendant appeals from a judgment of conviction of murder in the second degree of John Washington.
Reversed.
H. R Wright, C. C. Putnam, and Guy S. Calkins, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
I.
Defendant complains that the court should not have submitted to the jury the question of his guilt of murder in the first degree for the reason that the indictment does not charge that grade of offense, in that, as he contends, the indictment does not allege a specific intent to kill. As the court submitted to the jury the question of defendant's guilt of murder in the first degree, and as the verdict found him guilty of murder in the second degree, defendant stood acquitted of the higher degree of crime charged, if it was charged, in the indictment. State v. Smith, 132 Iowa 645, 109 N.W. 115. As there must be a new trial on other grounds, and as the matter of guilt of murder in the first degree cannot, in any event, be again submitted to the jury, the error complained of, if any, is now without prejudice.
II. The important question in the case, from defendant's standpoint, is whether the killing was in self-defense. The homicide was committed in the home of the deceased, in the presence of his wife, Lottie, and the daughter Fern. Defendant was a visitor at that home. At the time in question, a quarrel arose over the character of the daughter, which, according to the State's evidence, was started by defendant, and according to defendant's testimony, by the deceased. Defendant's claim was that deceased accused him of defaming the daughter. As defendant testifies:
Defendant's testimony is contradictory of self-defense, in that he says that he shot to scare deceased, had no intention to shoot him, was not shooting at him, was not scared. In other respects it is inconsistent with his claim of self-defense. The State introduced evidence of defendant's statement to the officers, after the killing, that he fired at deceased twice, and that he was doing it in protection of his own life, was scared. The court cannot say, as matter of law, that error in instructions on the law of self-defense was without prejudice. In instructing on this defense, the court charged:
We are of the opinion that these instructions are confusing and misleading. While the court properly told the jury (State v. Yates, 132 Iowa 475, 109 N.W. 1005), that it was for the State to prove that the defendant did not act in self-defense, and that no duty to establish self-defense was upon defendant, yet he also said:
"Four things are essential to the defense of self-defense, and before you can find that such defense has been established in this case, the presence of all four of these elements must appear in the evidence; and if any one of them does not appear, it is fatal to the defense of self-defense."
The instruction then proceeds that the person claiming the defense "must be without fault in bringing on the encounter;" that "defendant must have retreated as far as he safely could, * * * and if he failed to so retreat, * * * the killing * * * would not be justifiable." We think the jury might understand from these specific declarations by the court, notwithstanding correct general propositions on the burden of proof and reasonable doubt, that, before they could allow the defense, four essential elements must affirmatively appear. An instruction implying that it was necessary for the jury to find that defendant was acting in self-defense is error. State v. Partipilo, 139 Iowa 474, 116 N.W. 1049. While such an instruction may be without prejudice if the facts completely negative the defense (idem), in this case the court does not feel warranted in holding, as matter of law, that there is such negation. The instructions were at least conflicting, and we think misleading.
Except that, in an interim in his visit at the house of deceased, when he and deceased went out to interview a neighbor, defendant says he got his gun, there is no evidence tending to show that defendant provoked the quarrel for the purpose of bringing on an opportunity to commit the homicide. The provocation of the quarrel appears to have been defendant's alleged defamation of the daughter. Defamation or opprobrious epithets not uttered for the purpose of bringing about opportunity to kill or do great bodily harm do not constitute such an act of aggression or provocation as to deprive the defendant of the right to claim self-defense. State v. Leuhrsman, 123 Iowa 476, 99 N.W. 140; 30 Corpus Juris 47. The jury might reasonably infer from the instructions that the alleged defamation of the daughter made defendant the aggressor, and provoked the encounter, and for that reason defendant was not acting in self-defense.
The jury were told that the amount of force which might be used was only that which was reasonably necessary, and also that defendant must have retreated as far as he safely could, and if he failed to so retreat, the killing would not be justifiable. In these instructions the court left out, we think, from the jury's consideration the element that the defendant was entitled to the benefit of conditions as they might reasonably have appeared to him as a reasonably careful and prudent person. Defendant was held responsible for using greater force than necessary, though the force that he used might reasonably have appeared to him, as a reasonably prudent person, to be necessary. The defendant was, by the instructions, required to retreat as far as he safely could,--that is, as far as, looking at the occurrence in the light in which it appeared to the jury, he might in fact have safely retreated, though, as conditions then appeared to defendant, he could not have retreated safely. Defendant was entitled to act on conditions as they honestly appeared to him at the time, as a reasonable person. State v. Brooks, 192 Iowa 1107, 186 N.W. 46. Defendant, according to his testimony, at the time of the shooting was at the home of deceased by invitation. He was not there wrongfully. He claims the full benefit of his testimony that deceased "reached for his gun." The ancient doctrine developed out of encounters in which firearms were not so frequently drawn, and in which there would be in the appearances at the time an opportunity to retreat. That the defendant setting up self-defense must have retreated is no longer...
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