State v. Graves

• Decision Date: 22 November 1921
• Docket Number: No. 34228.,34228.
• Citation: State v. Graves, 192 Iowa 623, 185 N.W. 78 (Iowa 1921)
• Parties: STATE v. GRAVES.
• Court: Iowa Supreme Court

192 Iowa 623

185 N.W. 78

STATE

v.GRAVES.

No. 34228.

Supreme Court of Iowa.

Nov. 22, 1921.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

The defendant was indicted for murder in the second degree.Trial to a jury, and conviction for manslaughter.Defendant was sentenced to the penitentiary for a period not exceeding that provided by the statute.Defendant appeals.Affirmed.Parsons & Mills, of Des Moines, and Robert Healy, of Ft. Dodge, for appellant.

Ben J. Gibson, Atty. Gen., Bruce J. Flick, Asst. Atty. Gen., and Vernon Seeburger, Asst. Co. Atty., of Des Moines, for the State.

PRESTON, J.

[1] Substantially the only controverted fact in the case is whether the killing of deceased was or was not accidental.Defendant claimed that it was accidental.One of the errors assigned is that the evidence was insufficient to support the verdict of the jury.There was an abundance of evidence from which the jury could have properly found that the killing of deceased was not the result of an accidental shooting.This is so clear that we shall not go into the details of the evidence.

[2]The appellant's abstract recites that defendant excepted to the instructions, and that such exceptions were entered of record.This is denied by the state in an amended abstract.The only other questions argued relate to alleged errors in the instructions, and particularly to instructions 11 and 12.Under the rules defendant is not entitled to be heard in regard to the instructions.Being a criminal case, we have examined the record with care, and will go only so far as to say that there is no conflict in the instructions, and the other objections thereto are covered by other instructions given and other parts of those complained of.They are to be taken as a whole, and construed together.

[3] Briefly, defendant's version of the transaction is that on the 5th of May, 1920, about 9:30 or 10 o'clock at night, he came home from the road and went to his home.His wife was gone, and there was nothing to eat in the house.He inquired by phone as to his wife's whereabouts; then went upstairs to comb his hair, and when he put the comb in the drawer he noticed the pistol; then started down towards the grocery store and saw it was closed; then concluded to go to the drug store to get some ice cream and wafers.When he was going down there he saw an automobile coming which he thought was his auto.He then stepped to the sidewalk and waited until the car came in sight to where he could see.He then ran and jumped on the running board of the car; don't remember what he did or said.He saw another man and woman in the back seat and another man he never saw before sitting by the side of his wife.This was De Vault, the deceased.The automobile came to a stop.Defendant asked De Vault who he was, and he did not answer--they wouldn't any of them talk to him.De Vault got out of the car when it stopped--he started to go west; he took a step or two and stumbled and fell.“I pulled my gun, just held it up in front of the car, and as I did my wife grabbed my arm, and at that time the gun went off.The discharge of the gun was accidental.”Other witnesses put the position of the parties and the transaction of the shooting somewhat differently than does the defendant.Deceased was shot in the back.After running a distance he fell.He died soon afterwards.The clerk of the grand jury testifies that defendant stated before the grand jury that he ran in front of the car, and De Vault was running east.There is no pretense that De Vault met his death in any other way, and there is no evidence that there was any other shot.

The testimony of the other witnesses shows, without any dispute whatever, that deceased was wounded by the discharge of a revolver in the hands of the defendant.The defendant admits it, but claims that the...