State v. Gough

• Decision Date: 16 October 1919
• Docket Number: 32922
• Citation: State v. Gough, 187 Iowa 363, 174 N.W. 279 (Iowa 1919)
• Parties: STATE OF IOWA, Appellee, v. JOE GOUGH, Appellant
• Court: Iowa Supreme Court

174 N.W. 279

187 Iowa 363

STATE OF IOWA, Appellee, v. JOE GOUGH, Appellant

No. 32922

Supreme Court of Iowa, Des Moines

October 16, 1919

Appeal from Des Moines District Court.--OSCAR HALE, Judge.

DEFENDANT was indicted for murder in the first degree, convicted of manslaughter, and appeals.

Reversed.

J. C McCoid and W. F. Kopp, for appellant.

H. M Havner, Attorney General, for appellee.

GAYNORJ. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

Defendant is accused of murder in the first degree, in the killing of one Abe Platt, on November 29, 1917.He was tried to a jury, and convicted of manslaughter, and appeals.

A brief statement of the facts is necessary to a proper understanding of the error upon which reversal is predicated.The defendant and deceased, at the time of the homicide, were both in the employ of one Z. T. Noble, a farmer.The killing took place in Noble's sitting room, at 10 o'clock at night, on November 29, 1917.On the evening of the encounter, the defendant and his employer, Noble, were sitting in the room, talking over some matter relating to the farm.The deceased had gone upstairs, whether to bed or not does not definitely appear.Noble was very deaf, and the conversation between defendant and Noble was necessarily carried on in a very loud voice.Whether deceased overheard the conversation is not made known to us.Deceased, however, came from his room down to the parlor where defendant and Noble were sitting.Thereupon, the defendant and deceased got into a verbal controversy, touching the subject-matter under discussion between Noble and the defendant, and some harsh language passed between them.There is controversy in the evidence as to which spoke first, and just when the speaking took place that provoked the physical encounter.The jury could well find that deceased threatened to do violence to defendant before the encounter, and followed this by attempted violence.Defendant was sitting in the room near the west door.The deceased, on entering the room, seated himself on a lounge at the east side of the room.The room was not a large room, about 14 feet across.The jury could well find that the deceased was the aggressor; that he arose from his seat, approached the defendant with threatening language and in a threatening manner, struck at the defendant, and administered one blow which brought the defendant to his knees.While in this attitude, he got the defendant by the throat, and while so held, defendant took a pocket knife from his pocket and cut the deceased.These facts could have been found by the jury substantially as we have stated them.At the time the assault was threatened, and at the time the assault was begun, neither party had any deadly weapons exposed to view.The defendant was sitting near the west door, and could, if the instincts of cowardice controlled, have escaped immediately through the door, and avoided any physical encounter with the deceased.He could have fled immediately upon the threat.He could have fled when the deceased arose to his feet and started to approach him.He could possibly, with safety, have fled through the door when the deceased first struck at him.The question presents itself: At what time did a legal duty rest upon the defendant to retreat from the attack?

It is not the province of the court to assume what the findings of the jury will be upon any phase of the case.When the evidence is such that any particular state of facts may reasonably be found by the jury to exist, it is the duty of the court, in a case of this kind, to tell the jury what the legal rights and duties of the parties are, under such conditions.Reversal is sought upon error alleged to have been committed by the court in the 14th and 15th instructions.These instructions relate to the duty of the defendant to retreat and avoid the encounter.This presents the inquiries: When does the duty of the defendant to retreat arise; how long may he stand his ground before retreating; whether he has a right to stand his ground and defend himself against the threatened assault; what he may do in the way of self-defense, before retreating?In other words, when must he flee from the wrath of his opponent?The court, in the twelfth instruction, told the jury:

"It is claimed on the part of the defendant that, in the transaction in controversy in this cause, the defendant acted in what is legally termed self-defense.* * * Under the law, a person who is assaulted or threatened by another is justified in using such force as is actually necessary, or such as, under the circumstances, he has reasonable ground to believe necessary, to repel such threatened attack, and prevent serious bodily harm to himself; but a threatened attack will not warrant the party threatened in the use of any more force than he has reasonable ground, as a person of ordinary prudence, to believe necessary to protect himself from serious bodily injury."

In the fourteenth instruction the court said:

"While the defendant had the right * * * if assaulted by the deceased, to employ such force as reasonably appeared necessary at the time to repel...