State v. Fador

• Citation: 268 N.W. 625,222 Iowa 134
• Decision Date: 31 July 1936
• Docket Number: 42908.
• Parties: STATE v. FADOR.
• Court: Iowa Supreme Court

268 N.W. 625

222 Iowa 134

STATE v. FADOR.

No. 42908.

Supreme Court of Iowa.

July 31, 1936

Appeal from District Court, Harrison County; Earl Peters, Judge.

Under an indictment charging him with assault with intent to commit murder, the defendant was tried and convicted of assault with intent to do great bodily injury, and appeals to this court. The opinion states the facts.

Affirmed.

RICHARDS, J., dissenting.

P. C Rasmussen, of Council Bluffs, and Robertson & Wolfe and Wallace W. Robertson, all of Logan, for appellant.

Edward L. O'Connor, Atty. Gen., and Walter F. Maley, Asst. Atty Gen., and William M. Tatum, Co. Atty., of Harrison County, of Logan, for the State.

DONEGAN Justice.

On the 17th day of October, 1934, James Hicks was a night watchman for the Chicago & Northwestern Railway Company at Missouri Valley, Iowa. Some time shortly after 9 o'clock on the evening of that day, while making his round in the railroad yards, he was accosted by a man who threatened him with a revolver and told him to move on. Hicks thereupon left the railroad yards and reported this occurrence to officer Kirlin, a night policeman. Kirlin, in company with one Clary, also a night policeman, proceeded toward the railroad yards. After making some investigation, Kirlin and Clary saw two strange men standing along the south side of a building just north of the railroad yards and, as they approached these men, the men proceeded eastward toward Fifth street in the city of Missouri Valley. The officers then separated; Clary following the two strange men and Kirlin proceeding northward through an alley which ran north and south parallel with Fifth street about 310 feet west thereof. The two strange men proceeded eastward to Fifth street, then one block north to Erie street, and then westward on the sidewalk along the south side of Erie street, Clary following a short distance behind them. In the meantime, Kirlin proceeded northward through the alley and, as he came out at the south side of Erie street, he saw the two strange men coming westward toward him on the sidewalk. Kirlin proceeded eastward on this sidewalk until he had met and passed about one step beyond these two men. He then turned, drew his gun, addressed the men, told them that he was an officer, and told them to stick up their hands, that he wanted to look them over, about the same time taking hold of the arm of the smaller of the two men. The larger of the two men immediately drew a gun, reached around the other man, who was standing between him and Kirlin, and shot Kirlin; the bullet going through the chest wall and lodging in his right arm. This man then hit Kirlin with his gun and knocked him down, and the revolver which Kirlin had in his hand dropped to the sidewalk. While Kirlin was down on the sidewalk, the smaller of the two men, who the state claims is the defendant in this case, drew a gun and began shooting at him. About this time, Clary, who had been following the two men, drew his gun and began to take part in the shooting. Several shots were fired by the two men whom Kirlin had accosted, some of them going through Clary's clothing, one of them striking the calf of his leg, and some of them striking a man and a woman who were some distance east on the sidewalk. None of the shots, however, produced fatal results. The two strange men then proceeded westward to the alley, southward into the alley, and disappeared. Kirlin and Clary, after having their wounds treated, were taken to a hospital at Council Bluffs. On the following Sunday morning, October 21, 1934, the railroad watchman, Hicks, was taken to the police station at Council Bluffs, where he identified the defendant as the man who had threatened him with a revolver in the railroad yards. Later in the same day, the defendant was taken to the hospital where Kirlin and Clary were patients and was recognized by both of them as one of the two men who had shot at them in Missouri Valley. Shortly thereafter, the defendant was indicted on the charge of assault with intent to commit murder. On the trial of the case he was found guilty of assault with intent to do great bodily injury, and has appealed to this court.

I.

The first alleged error upon which the plaintiff relies for reversal is that the evidence was not sufficient to sustain the verdict returned by the jury. Upon the trial of the case, the railroad watchman, Hicks, recognized the defendant as the man who had threatened him with a revolver in the railroad yards on the evening of October 17th. The two policemen, Kirlin and Clary, both recognized the defendant as one of the two men who shot at them on the south side of Erie street the same evening. The defendant offered evidence in support of an alibi, and several witnesses testified to his presence in the city of Council Bluffs at various times between 8:30 and 10:30 o'clock on the evening that the shooting occurred in Missouri Valley. The witnesses for the state testified as to the condition as to light, their nearness to defendant, and their observation of him, and were positive in their identification. It is contended by the defendant that the circumstances attending the meeting of Hicks with the man in the railroad yards and the circumstances attending the observation of the two men by the officers, Kirlin and Clary, near the railroad yards, and what followed until the shooting was over, were such that little or no reliance can be placed upon their identification of the defendant; that the weight of the testimony is in favor of the defendant's claim that he was not one of the two men involved in the shooting; and that the court should say, as a matter of law, that the evidence was not sufficient to sustain the conviction of the defendant beyond all reasonable doubt. We are unable to take the view of this matter for which the appellant contends. While there was a clear conflict between testimony of the witnesses for the state and those for the defendant, the evidence is not such that we could say, as a matter of law, that the greater weight was with the defendant. We think the evidence is abundantly sufficient to sustain the verdict rendered. The cases cited by the defendant in support of his contention are entirely different in their facts from the case at bar.

II.

Defendant complains of instructions given by the court and of the refusal of the court to give instructions requested by him, in regard to the right of the policeman, Kirlin, to arrest the two men whom he met on the south side of Erie street, in regard to the things said to these two men by Kirlin being insufficient to comply with the statutory requirements of a valid arrest, and in regard to the right of the persons thus attempted to be arrested to defend themselves from the officer. It is undisputed in the evidence that the railroad watchman, Hicks, had been assaulted by some one, that Kirlin and Clary were searching for the person who committed this assault, that the two men were strangers and were seen in the vicinity of the assault shortly after it occured. There is evidence tending to show that, as the two men proceeded westward along the sidewalk on the south side of Erie street, they were walking rapidly and that, when the policeman, Kirlin, emerged from the alley and proceeded eastward on the sidewalk, he had reached a point approximately 25 feet east of the alley when he met them. The testimony of Kirlin is: " Well, I took one step past these fellows, and told them who I was, and told them to put up their hands" ; I said, " I am an officer boys, put up your hands and I will look you over." Kirlin further testified that as they turned around the smaller man, who the state claims is the defendant in this case, was between the other man and Kirlin; that the short man put up his hands, but that the tall man reached around the short man and shot Kirlin through the chest. It is undisputed in the evidence that neither of the police officers was in uniform, and that nothing further was said by Kirlin to the two men than is contained in his testimony as above set forth.

It is contended by the appellant that, under the evidence, the officers did not make or attempt to make an arrest, that what Kirlin did was an assault upon the two men, and that these two men had a right to defend themselves from the assault thus made upon them. In support of this contention appellant cites State v. Small, 184 Iowa 882, 169 N.W. 116; State v. Phillips, 118 Iowa 660, 92 N.W. 876, 884; Snyder v. Thompson, 134 Iowa 725, 112 N.W. 239.

In the Small Case, the defendant was tried and convicted of having resisted an officer who was attempting to arrest him for an alleged public offense committed in the officer's presence. The case was reversed by this court on the ground that the things done by the defendant, and for which the officer was attempting to arrest him, did not constitute a public offense. In the Snyder Case, which was a civil action for false imprisonment, a verdict for the defendants was set aside by the trial court, and it was from the trial court's ruling setting aside such verdict that the appeal was taken to this court. The court had instructed the jury that the burden was on the plaintiff to show that he was not found intoxicated at the time of his arrest, nor immediately preceding the same on that day, and error based upon this instruction was one of the grounds for the trial court setting aside the verdict. This court affirmed the trial court's action in setting aside the verdict on the ground that the instruction was erroneous. Quite apparently, neither of these cases goes to the proposition for which appellant here contends.

In the case of State v. Phillips, however, the facts attending the alleged arrest were somewhat similar to those in the...