State v. Fischer

Decision Date22 September 1953
Docket NumberNo. 48161,48161
Citation245 Iowa 170,60 N.W.2d 105
PartiesSTATE v. FISCHER.
CourtIowa Supreme Court

Doran, Doran, Doran & Erbe, of Boone, and Lund & Lund, of Webster City, for appellant.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Lawrence R. Kayser, Hamilton County Atty., and Lloyd Karr, of Webster City, for appellee.

THOMPSON, Justice.

Defendant was accused by county attorney's information, filed April 24, 1951, of murdering Alfred Warren Fischer, contrary to section 690.1 of the 1950 Code of Iowa, I.C.A. He entered his plea of not guilty to this charge. On February 4, 1952, the information was amended so it accused defendant of the crime of 'murder in the second degree, in that he did murder the said decedent, at said time and place with malice aforethought.' Defendant then entered his plea of not guilty by reason of temporary insanity and, or, lapse of memory. Upon trial to a jury the defendant was found guilty of murder of the second degree. Judgment was entered accordingly; and his motion for new trial having been denied, he was sentenced to confinement in the state penitentiary at Fort Madison for a period of ten years. From this judgment and sentence he appeals.

Alfred Warren Fischer, the decedent, was the father of the defendant. He was, and had been since 1944, the superintendent of schools at the town of Jewell. He was well known in high school circles throughout the state, not only as an educator but even better, perhaps, as an official in football and basketball contests. The defendant was born September 15, 1936, so at the time of the alleged killing, April 18, 1951, he was about fourteen and one-half years of age.

That the decedent came to his death through gunshot wounds inflicted by the defendant with a .22 caliber rifle cannot be seriously disputed. On the early evening of the date in question the decedent had required defendant to assist in raking leaves in the yard of the family home in Jewell. Mr. Fischer became dissatisfied with the manner defendant was performing his task and sent him to his room, saying, according to defendant, 'I'll take care of you later' or words of similar import. Defendant went to his room, and shortly thereafter his father came to the room, where the shooting took place. The rifle used was kept by defendant in his room. It was a .22 caliber gun with a magazine which held perhaps twenty bullets. The magazine was filled by defendant after he reached his room. Decedent's body was pierced by eight separate shots, and while two or three of the wounds were superficial it is evident that at least three or four of them would have been certainly or probably fatal. Ten empty shells were found on the floor of the room.

I. While thirteen errors are assigned as grounds for reversal, the only one argued, with brief points and authorities submitted, is Number 3: 'In submitting second degree murder, because there was no competent evidence from which malice could be inferred.' The same point is perhaps touched upon in other assignments, particularly Number 5.

We find this assignment without merit. Malice is of course an essential element of the crime of murder. But we have many times said assault with a deadly weapon implies malice; and if death ensues the presumption is warranted that such killing was with malice aforethought, unless there be an explanation to the contrary showing a legal excuse for the assault and killing. Thus, a showing of self-defense might remove the presumption of malice. But ordinarily, and certainly under the facts in this case, the question whether a legal justification is shown is for the jury. We said in State v. Brown, 152 Iowa 427, 437, 132 N.W. 862, 866: 'On the killing of a human being, when this is done by the use of a dangerous weapon calculated to produce death, the presumption, in the absence of any explanation to the contrary, is that such taking of life was with malice aforethought.' In State v. Hayden, 131 Iowa 1, 8, 107 N.W. 929, 931, we said: 'The rule almost everywhere is that from the mere fact of killing the inference of malice arises; * * *.' See, also, State v. Teale, 154 Iowa 677, 684, 135 N.W. 408; State v. Roan, 122 Iowa 136, 97 N.W. 997, and many other cases cited in State v. Hayden, supra.

We have examined the cases cited by defendant in support of his contention at this point. Each of them holds, under the facts shown in the record, there was not sufficient evidence of malice to warrant the submission of murder in the second degree. Patently, however, each depends upon its own facts, and a sufficient showing of malice to require a jury determination may appear in one case although absent in another. The cited cases do not aid defendant.

There is other evidence than the use of a deadly weapon by the defendant from which the jury could have found malice. Shortly after the killing the defendant made a written statement, or confession to the sheriff, county attorney, and coroner, telling of the occurrence and of his motives for shooting his father. This confession was admitted in evidence, and rightly so,--the jury being correctly instructed as to its competency. In the confession the defendant said:

'The only explanation of why I did what I did is that I was angry.' Apparently he was anticipating paternal punishment. He further says:

'As he (his father, the decedent) opened the door, I shot him, but I don't know where I hit him. I shot several times and he went back into the hall. He called to my mother 'Mommy, I'm shot.' He came back into the room and I shot him several more times. I had the rifle to my shoulder each time I shot. He kind of staggered over to the bed and grabbed a board (from the bed) and started for me, and I shot him again, and then he hit me with the board, and I fell on the bed and he fell on the floor, with the board underneath him.'

The defendant told a quite different story on the witness stand. His version then was that he shot twice as his father first came into the room to warn him, shooting low and to one side, without intent to hit him. That his father then retreated into the hall, calling to Mrs. Fischer that he was shot; then he came back into the room, tore the bed apart to secure a board from it, and struck the defendant across the shoulders, knocking him down. What happened after that he testified he does not remember. But we are concerned here with the state's evidence. If it generates a jury question on the issue of malice, it is not important that it be denied or contradicted by the defense, unless and except in the rare instances when such denial or defense is so complete and conclusive as to destroy the state's showing. We do not have such a situation here. The assault with a rifle, certainly a deadly weapon, the number of shots fired, the statements in the confession, which the jury had a right to believe, all made a jury issue on malice. At other points in his testimony the defendant said he was 'mad' at his father. The court properly submitted the offense of murder in the second degree to the jury.

II. One of the assignments of error complains of instruction No. 18. The assignment is argued only very briefly and no brief point notes any authority in support of it. The only reference to the point in argument is contained in these two sentences: 'State's requested instruction No. 18 is not an approved instruction under the factual situation here. It was not proper and is not a correct statement of the law.' Assuming defendant's complaint is against the instruction actually given, we set it out herewith:

'You are further instructed that the father of a minor child has the right to administer punishment for the correction of such child; that it is the duty of such child to submit to said punishment; that in the administration of said punishment the father has the right to enter a room occupied by such child and that such child has no right to resist such punishment unless the amount of force used or the means employed by the father render such punishment abusive rather than corrective in character.'

Under the familiar rule that all instructions must be read together and considered as a whole, we also quote the somewhat lengthy instruction No. 17, dealing with self-defense, which we think must be read with instruction 18.

'In connection with the third and fourth elements of the defense of self-defense, you are instructed that where a person is assaulted or threatened with an assault in such manner and under such circumstances as to cause him to honestly believe as an ordinarily prudent and cautious person that he is at the time in actual danger of losing his life or of suffering great bodily harm, then and in that case he is justified in using such force and such means to protect his life and person as may in good faith then have appeared necessary to him as an ordinarily prudent and cautions person. He is not required to make nice calculations as to just how much force he may be required to use in order to shield himself from danger. All that is required of him is that he shall act from reasonable and honest convictions as to his danger although mistaken as to the extent of such danger. 'If you find from the evidence in this case that the defendant had been...

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  • State v. Lass
    • United States
    • Iowa Supreme Court
    • April 16, 1975
    ...every element. The court did not use the language held nocuous in State v. Hansen, 203 N.W.2d 216, 218 (Iowa). See State v. Fischer, 245 Iowa 170, 172--173, 60 N.W.2d 105, 106 ('But we have many times said assault with a deadly weapon implies malice; and if death ensues the presumption is w......
  • State v. Thorpe, 79-361-C
    • United States
    • Rhode Island Supreme Court
    • May 8, 1981
    ...of the child, the parent is entitled to be the judge of what is required and the means to be adopted. State v. Fischer, 245 Iowa 170, 176-78, 60 N.W.2d 105, 108-09 (1953). As a general rule, 2 a parent or one in loco parentis may inflict reasonable corporal punishment. See Ingraham v. Wrigh......
  • State v. Jiles
    • United States
    • Iowa Supreme Court
    • May 3, 1966
    ...nor do we propose to now unduly belabor the matter. For the moment it should be sufficient to simply note that in State v. Fischer, 245 Iowa 170, 172--173, 60 N.W.2d 105, we said: '* * * assault with a deadly weapon implies malice; and if death ensues the presumption is warranted that such ......
  • State v. Haffa
    • United States
    • Iowa Supreme Court
    • June 7, 1955
    ...evidence related, there was sufficient proof to raise the presumption of malice by the admitted use of the deadly weapon. State v. Fischer, Iowa, 60 N.W.2d 105. Here, as in the Christie case, supra, the argument is advanced that while that presumption is permissible, we may not go further a......
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