State v. Dimmitt
| Decision Date | 25 October 1918 |
| Docket Number | 31927 |
| Parties | STATE OF IOWA, Appellee, v. ED. DIMMITT, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--CHARLES HUTCHINSON, Judge.
INDICTMENT charging murder in the first degree. Conviction of murder in the second degree. Defendant appeals.
Affirmed.
J. B Rush and J. F. Conrad, for appellant.
H. M Havner, Attorney General, F. C. Davidson, Assistant Attorney General, Ward C. Henry, Arthur T. Wallace, Arthur G. Rippey and Louis E. Cohen, for appellee.
I.
The testimony of quite a large number of witnesses was addressed to an alibi. Some of these are discredited. The testimony of others is loose as to time. Take the evidence as a whole, and we cannot say it was so conclusively made to appear that defendant could not have committed the crime with which he is charged that we can interfere with the verdict on the ground that an alibi was established.
II. It is made out beyond all question that one Chrisinger was murdered by someone, and that he came to his death through a crushing blow upon the head, struck with some blunt, heavy instrument. A bloody hammer was found near him, and, beyond all doubt, is the lethal instrument. It is urgently insisted that the verdict finding defendant guilty of this crime is not sustained by the evidence. This contention takes two forms. One of them is that there is no evidence to sustain the verdict of murder in the second degree, because, under the evidence, the crime could be found to be nothing below murder in the first degree.
It is only where the court may hold, as matter of law, that, if any wrong was done, the highest offense charged was committed, that included offenses need not be submitted. In other words, the exclusion of an included offense is, in a sense, a direction for defendant; wherefore, it is proper to exclude the offense only if it be proper to direct a verdict of acquittal, were defendant charged with the higher offense alone. If there is room for reasonable difference of opinion whether the highest offense charged was committed, the defendant cannot make the point that it was error to convict him of the lower. In such case, his complaint amounts to a claim that, by possibility, the jury dealt too leniently with him; and, of course, that does not lie in his mouth. State v. Brooks, 181 Iowa 874, 165 N.W. 194. In this case, the jury either was not as harsh as it was justified in being, or else the condition of proof makes it fairly a jury question whether the highest or some lower offense should be convicted for.
The second argument is that the evidence is not sufficient to prove that defendant is the person who killed Chrisinger. On analysis, it is not claimed that there is no testimony showing defendant's guilt, but that the testimony is utterly insufficient, if that of two witnesses who were accomplices be, as it should be, excluded. We have to say that there was enough corroboration to send the corroboration of these two witnesses to the jury. That is so clearly true that it would serve no useful purpose to set out the corroborating matter. Indeed, there is one witness who is not an accomplice, and who comes near to saying the equivalent of having actually seen defendant perpetrate the deadly assault. At any rate, if the jury might believe this witness, she testifies to enough so that no one will claim that there is not sufficient corroboration. It is true there is testimony that tends to impeach this one witness, but her credibility was for the jury.
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