State v. O'Donnell

• Citation: 157 N.W. 870,176 Iowa 337
• Parties: THE STATE OF IOWA, Appellee, v. MATHIAS MARTIN O'DONNELL, Appellant
• Decision Date: 13 May 1916
• Court: United States State Supreme Court of Iowa

157 N.W. 870

176 Iowa 337

THE STATE OF IOWA, Appellee, v. MATHIAS MARTIN O'DONNELL, Appellant

Supreme Court of Iowa, Des Moines

May 13, 1916

Appeal from Lee District Court.--W. S. HAMILTON, Judge.

A JURY found the defendant guilty of murder in the first degree, and directed that capital punishment be inflicted. Sentence passed accordingly, and defendant appeals.--Reversed and Remanded.

Reversed and Remanded.

A. T Marshall and J. M. C. Hamilton, for appellant.

George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for appellee.

SALINGER J. EVANS, C. J., DEEMER, LADD, WEAVER, and GAYNOR, JJ concur, PRESTON, J., concurs in result.

OPINION

SALINGER, J.

Inez, the wife of the defendant, was discovered in a dying condition, because of statements made by defendant when more or less intoxicated, which led to an entrance into the building wherein the couple lived. The searchers went to the basement because of groans heard, and the woman was found lying on its floor, naked and unconscious. She died soon thereafter without having spoken intelligently, and from the effect of many and horrible wounds which, in their very nature, could not have been self-inflicted. No witness other than the defendant is able to speak of his own knowledge concerning the assault. The State charges defendant with causing the death with blows and bruises.

We are of opinion that the sentence of death imposed should not stand. The majority reaches this conclusion because it finds that the evidence does not justify a conviction for murder in the first degree. While we are agreed that the sentence of death should be canceled, some members of the court think this may be accomplished without reversing for insufficiency of the evidence to sustain a verdict of murder in the first degree. In these circumstances, we feel impelled, under the rule in State v. Asbury, 172 Iowa 606 at 616, to refrain from more discussion of the evidence than is necessary to determine whether a conviction for murder in the first degree can be sustained.

The effect of canceling the death sentence by a reversal on the ground that an unwarranted verdict was returned, and canceling it while sustaining the verdict, is so different that it becomes necessary to determine whether the verdict returned is warranted. Section 4728 of the Code defines murder in the first degree to be, inter alia, any kind of "wilful, deliberate and premeditated killing." To sustain the verdict, we must be able to find not only evidence of murder, but of additional elements which are as essential to convict of murder in the first degree, as is evidence that any murder was done. That this is so, is settled by our decisions that the indictment is not one for murder in the first degree if it charge no more than that the killing is merely wilful and premeditated (State v. Boyle, 28 Iowa 522); that, in addition to charging that the assault was wilful, deliberate and premeditated, it must be charged that the blow constituting the assault was dealt with the purpose of killing (State v. McCormick, 27 Iowa 402; State v. Watkins, 27 Iowa 415); that the charge of the specific intent to kill must not by the indictment be left to inference (State v. Linhoff, 121 Iowa 632, 97 N.W. 77); and by our holdings that the proof must tend to show a specific intention to take life; that premeditation implies more than deliberation and means to meditate and deliberate before concluding to do the deed; that it means not only to take life wilfully, but to predetermine and to contrive by previous meditation (State v. Gillick, 7 Iowa 287, 311; State v. Johnson, 8 Iowa 525; State v. Sopher, 70 Iowa 494, 30 N.W. 917; State v. Hockett, 70 Iowa 442, 30 N.W. 742; State v. Shelton, 64 Iowa 333, 20 N.W. 459; State v. Perigo, 70 Iowa 657, 28 N.W. 452). The existence of this intent cannot be presumed as a matter of law, State v. Carver, 22 Ore. 602, 30 P. 315. While the essential premeditation need not be of long duration, and may be established by inferences justifiably to be drawn from the circumstances attending the crime in inquiry, it will be found that these are more often than otherwise drawn from the nature of the weapon employed, if any, and the manner of its use (Commonwealth v. Woodward, 102 Mass. 155), or drawn from the manner of obtaining the weapon, and from evidence bearing on whether it was provided by accused beforehand, rather than seized hastily in the heat of an affray (Taylor v. State, 108 Ga. 384, 34 S.E. 2).

We find that the evidence as a whole tends rather to negative than to prove the existence of this essential specific intent. As to the suggestion that the prior conduct of defendant made it a jury question whether the last assault was made with specific intent to kill, we have this to say: The appellant was of a tyrannical and unfeeling disposition, which drink exaggerated. He made prompt settlement of domestic differences with curses and blows. On each recurring carousal, he harked back to that time in which the right of human brutes to whip their wives was unquestioned. But none of these assaults, bad as they were, were made with a deadly weapon. Giving to each recurring one its most sinister aspect, none was of a character more grave than an aggravated and inexcusable assault and battery. None of these prior acts were done with intent to take life. Therefore, they afford no sufficient evidence upon which to find the existence of such intent in the last assault. See Shelton v. State, 34 Tex. 662. The indictment charges the killing was done by means of a heavy iron poker, or other deadly weapons to the grand jury unknown. There was found in the house a poker, an iron rod about four feet long and something over half an inch thick. A blow from it, when dealt by a strong man, even with moderate force only, would readily break bones or crush a skull. No bones of the deceased were broken, nor was her skull fractured; and, while a wound across the forehead, the most severe single wound found, penetrated to the bone, the physicians agree that it was not mortal. No blood was found on the poker, and the only support for the inference which the State draws that it was used as a weapon, or that a deadly weapon was used, is that it was found in the room where the parties lived, and the nature of the wounds. The record tends to show that deceased either fell or was thrown down the basement stairs; and, if appellant as a witness may be believed, such fall occurred at least twice. While it is difficult to account for all the wounds by such falls, even one such plunge may well have produced many of the abrasions and bruises which disfigured the body. The condition of the living room and of its furniture, and the clothing scattered about, indicate that a struggle had taken place, and that the clothing was removed or torn from the woman's body before the parties went or fell into the basement. The inference is strengthened because the naked body of the deceased was grimy with dirt and coal dust off the basement floor, and because upon this floor were tracks of bare feet and other marks such as might have been produced by crawling upon or dragging a body across that floor. No one mortal wound or injury was revealed by the superficial examination of the corpse or by the autopsy, but it is reasonably certain that the effect of all the injuries combined was sufficient to cause death upon a body weakened and devitalized by a most wretched life. The last assault was not essentially more brutal than the ones that preceded it; for the evidence tends to show that defendant had on other occasions stripped the clothing from his wife and beaten and choked her unmercifully. The natural, if not the only reasonable, conclusion is that this final attack was one of habitual outbursts of savagery. While each and all of them were inexcusable and outrageous beyond words, they fail to show beyond a reasonable doubt the specific intent to kill. Even those of us who do not in terms agree that the evidence was insufficient, do say that a doubt may reasonably be entertained as to whether a specific intent to kill is sufficiently established; that the existence of this intent is a more open question than any other question presented; and the strongest position taken by them is that, while the State is not wholly without evidence of such intent, it must be conceded that its showing thereon is weak, and that canceling the death sentence may be more readily agreed to because of their belief that we have a discretionary power to reduce the punishment to life imprisonment. In a word, it seems to us that we are in substance and effect agreed that the evidence does not satisfactorily sustain a conviction of murder in the first degree.

II. It is suggested that Code Section 5462 enables this court, without reversal, to change the capital sentence to one of life imprisonment. A fair construction of that statute is that, if it "do not affect the substantial rights of the parties," the Supreme Court may, inter alia, not only reverse, but may (1) modify, or (2) "render such judgment on the record as the law demands," or (3), what is in effect the same thing, "render such judgment as the district court should have done."

What the legislature intended by these grants must be resolved under the rule that statutes are not to be so construed as to make their constitutionality even a matter of fair doubt, if such construction be in reason avoidable. Hunter v Colfax Cons. Coal Co., 175 Iowa 245, 157 N.W. 145, 154 N.W. 1037. The Constitution, Article 5, Section 4, constitutes this court one "for the correction of errors at law." It is plain that to set aside a verdict because it is not sustained by the evidence is an appellate correction of...