State v. Davis

• Decision Date: 13 December 1929
• Docket Number: No. 39813.,39813.
• Citation: 209 Iowa 524,228 N.W. 37
• Parties: STATE v. DAVIS.
• Court: Iowa Supreme Court

209 Iowa 524

228 N.W. 37

STATE

v.DAVIS.

No. 39813.

Supreme Court of Iowa.

Dec. 13, 1929.

Appeal from District Court, Polk County; Herman F. Zeuch, Judge.

Defendant appeals from a judgment of conviction of murder in the second degree of John Washington. Reversed.

De Graff, Faville, and Kindig, JJ., dissenting.H. R. Wright, C. C. Putman, and Guy S. Calkins, all of Des Moines, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

MORLING, J.

[1] 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.

[2][3][4] 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: “He says, ‘Walter Davis, you dirty son of a bitch, if you say anything about her,’ and reached for his gun. I ran to the middle door, and Fern was in the middle door. * * * I tried to push her out, you see. To keep him from following, I just--boom, boom--but I didn't aim to kill him. I didn't aim to shoot him. * * * I shot when I was trying to get out.” 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:

“The defendant claims, at the time he shot John Washington, he was acting in self-defense. It is incumbent upon the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. * * * In so protecting his life or person from such an assault he had the legal right to use all the force that is reasonably necessary to protect his own life and person, even to the extent of taking the life of his assailant, if it is necessary to take the life of the assailant to prevent death or great bodily injury to himself. 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. First, the person claiming the defense of self-defense must be without fault in bringing on the encounter out of which the killing arose. No man can bring on an encounter and successfully plead necessity for taking human life. Where the defendant is the aggressor and provokes an encounter the right of self-defense does not exist, unless the defendant withdraws from the encounter, or if unable to withdraw notifies the other party to the encounter of his intention so to do, either by declaration or conduct. Second, the amount of force that may be used is only that which is reasonably necessary to prevent death or great bodily harm, either actual or apparent. * * * He is not to be held to any nice distinction as to the amount of force necessary, providing he does not willfully and purposely and from a wrongful motive use greater force than is necessary to protect his life or person. Third, the necessity and danger for killing the assailant need not be real, but in fact only apparent. * * * Fourth, the defendant must have retreated as far as he safely could in order to avoid violence and necessity of taking life, and if he failed to so retreat as far as he safely could, the killing or taking the life of his assailant would not be justifiable killing and would not be in self-defense. You must at all times keep in mind that no duty whatever rests upon the defendant to establish his defense of self-defense, but, as hereinbefore stated in this instruction, it is incumbent upon the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. If * * * you have * * * such reasonable doubt as to whether the defendant was acting in self-defense, in doing what the evidence may show he did do, he is entitled to the benefit of such doubt and must be acquitted.”

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 (Id.), 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.

[5][6] 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 C. J. 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.

[7][8][9] 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 reasonably appeared...