State v. Dillingham

• Decision Date: 01 July 1909
• Citation: 143 Iowa 282,121 N.W. 1074
• Parties: STATE v. DILLINGHAM.
• Court: Iowa Supreme Court

143 Iowa 282

121 N.W. 1074

STATE

v.DILLINGHAM.

Supreme Court of Iowa.

July 1, 1909.

Appeal from District Court, Carroll County; Z. A. Church, Judge.

The defendant appeals from a conviction of assault with intent to commit manslaughter. Affirmed.B. I. Salinger and L. H. Salinger, for appellant.

H. W. Byers, Atty. Gen., and Chas. W. Lyon, Asst. Atty. Gen., for the State.

SHERWIN, J.

The defendant was convicted of assault with intent to commit manslaughter on an indictment charging him with murder in the first degree. The court instructed on murder in the first and second degrees, and on manslaughter, and submitted the questions to the jury for its determination.

The appellant says there was error in directing the jury to consider the charge of murder in either degree and error in directing it to consider the crime of manslaughter. These objections may be disposed of without extended argument, and with a recital of some of the evidence which in our judgment justifies the instructions complained of. The defendant and the deceased were brothers. They were together in a saloon at about 7 o'clock in the morning of the day in question, at which time the deceased made serious threats against the defendant, to which the defendant made no answer. Soon thereafter the defendant left the saloon and went to the hotel where he was employed. About 8:30 o'clock the deceased was seen to enter the basement of the hotel, and not long thereafter the defendant came from the same basement and told the manager of the hotel that he and his brother had had trouble in the boiler room of the basement, and that it would be well for the manager to get his brother away from there. The manager went to the basement and found the brother washing the blood from his face and head. Very soon after that, Joe, the brother, came from the basement, and within a short time was seen going to the stockyards of the railroad company, where he was found dead a few hours after. When he was found, there was a fracture of his skull about seven inches long and five other serious wounds thereon; the fracture and the other wounds all appearing to have been made with a blunt instrument. The defendant stated to several persons that he had had trouble with his brother in the hotel. He stated that the deceased went into the boiler room while he was poking the fire, and that, when he laid the poker down, the deceased picked it up and struck him on the wrist with it, and that his brother also cut his fingers with a knife. To some of the witnesses the defendant stated that, when his brother assaulted him, he picked up a piece of gas pipe and knocked his brother down, that he knocked him down three times, and that each time he would get up he would knock him down again. There can be no serious doubt that the wounds on the head of the deceased caused his death, nor that such wounds were inflicted by the defendant with a piece of gas pipe in the boiler room at the time in question. The testimony shows that there were pieces of gas pipe in a room adjoining the boiler room before and after the quarrel; but the only evidence tending to show that the piece of pipe used by the defendant was in the boiler room and at hand when he was assaulted...