State v. Grover

• Court: United States State Supreme Court of Idaho
• Citation: 35 Idaho 589,207 P. 1080
• Parties: STATE, Respondent, v. WILLIAM D. GROVER, Appellant
• Decision Date: 30 June 1922

207 P. 1080

35 Idaho 589

STATE, Respondent, v. WILLIAM D. GROVER, Appellant

Supreme Court of Idaho

June 30, 1922

JUSTIFIABLE HOMICIDE - SELF-DEFENSE - EVIDENCE - PRESUMPTION OF INNOCENCE.

1. One who is suddenly attacked by another has a right to protect his own life and bodily security by such means as may be available, provided he is in present fear of receiving great bodily injury and uses no greater force than necessary to repel the attack, in view of the exigencies of the situation as it appears to him as a reasonable man.

2. Where in a criminal prosecution the undisputed evidence is entirely consistent with the defendant's innocence and the jury nevertheless returns a verdict of guilty, the trial court commits error in refusing to grant the defendant a new trial.

3. Where in a prosecution for murder the evidence shows that the defendant was attacked by the deceased with a shovel, that the defendant warded off the first of deceased's blows with his own shovel, that deceased then struck a second blow at defendant which the latter dodged, and was in the act of administering a third blow when he was fatally struck by defendant, held that the homicide was justifiable.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. F. J. Cowen, Judge.

Prosecution for murder; conviction of involuntary manslaughter. Appealed. Judgment reversed.

Reversed and remanded.

Thomas & Anderson, for Appellant.

The appellate court will examine the evidence to ascertain whether or not the verdict is supported by the evidence. (State v. Jones, 25 Idaho 587, 138 P. 1116; State v. Donnington, 246 Mo. 343, 151 S.W. 975; State v. Baker, 6 Idaho 496, 56 P. 81; State v Anderson, 6 Idaho 706, 59 P. 180.)

Where there is absolutely no evidence to sustain a verdict, or where the evidence so preponderates against the verdict as to justify the presumption that it was rendered under the influence of passion or prejudice, the verdict should be set aside. (State v. Nesbit, 4 Idaho 548, 43 P. 66; State v. Trego, 25 Idaho 625, 138 P. 1124; State v. Seymour, 7 Idaho 257, 548, 61 P. 1033, 63 P. 1036; State v. Marquardsen, 7 Idaho 352, 62 P. 1034; People v. Kuches, 120 Cal. 566, 52 P. 1002.)

When the circumstances on which a verdict is based can be as reasonably explained upon some other reasonable hypothesis than that of defendant's guilt or as perfectly consistent with defendant's innocence, then a new trial should be granted. (State v. Nesbit, supra; State v. Seymour, 10 Idaho 699, 79 P. 825.)

Roy L Black, Attorney General, and James L. Boone, Assistant, for Respondent.

The appellate court will not disturb a judgment based on a verdict in a criminal case where there is substantial conflict in the evidence, but taken as a whole the evidence is sufficient to sustain the verdict. (State v Steen, 29 Idaho 337, 158 P. 499; State v. Mox Mox, 28 Idaho 176, 152 P. 802; State v. Bouchard, 27 Idaho 500, 149 P. 464; State v. Hopkins, 26 Idaho 741, 145 P. 1095; State v. Carlson, 23 Idaho 545, 30 P. 463.)

BUDGE, J. Rice, C. J., DUNN, J., McCarthy, J., concurring. Lee, J., sat at the hearing, but took no part in the opinion.

OPINION

BUDGE, J.--

Appellant was convicted of involuntary manslaughter. This appeal is from the judgment and from an order denying a motion for new trial.

From the record it appears that on the morning of July 7, 1919, an altercation took place between appellant and one Joseph Koury, during the course of which the latter received a fatal blow upon the head from a shovel in the hands of appellant, resulting in cranial fractures and practically immediate death. The evidence tends to show that appellant left his house at about 5:30 A. M., on said date, and proceeded to a lateral irrigation ditch which runs through his premises, where he checked up the water and made a cut just above the headgate on one side of the ditch, about eighteen inches to two feet deep, for running the water out into his sugar-beet field. Appellant was wearing rubber boots and standing in the water in the cut, placing dirt against the headgate, when, about 7 A. M., the deceased came up. Some conversation ensued, and appellant testified that deceased attempted to remove the boards from the check in the headgate, but that he reached forward with his right hand and prevented deceased from doing so, whereupon deceased became enraged and struck two blows with his shovel at appellant, the first of which struck the shank of appellant's shovel, and the second of which appellant dodged, whereupon appellant, in defense of his person, struck deceased a left-handed blow with his shovel upon the right temporal region, knocking him into the ditch below the headgate. Appellant lifted deceased out of the ditch and laid him on the grass on the ditch bank and immediately notified the sheriff by telephone that he had had trouble with deceased and requested him to come at once. The sheriff arrived at the scene of the homicide shortly thereafter, found the body of the deceased, placed appellant under arrest and conveyed him to the county jail.

An autopsy was held by three doctors who were called to testify upon the trial as state's witnesses and testified as to the condition of deceased's head and that in their opinion he had received two blows rather than one, due to the fact that a slight indentation or depression was found in deceased's skull just above the left eye, but admitted that all the other fractures might have been caused by one blow. A fourth doctor who saw the autopsy and was called as a witness for appellant testified that there was no indentation or depression above the left eye and that all the fractures found might have been and were caused by one blow. There is no evidence in the record which accounts for the indentation or indicates that it was produced by any act of appellant, nor were there any eye-witnesses to the affray other than appellant.

The jury returned a verdict of guilty of involuntary manslaughter and recommended lenience. Appellant's motion for new trial was overruled, and judgment was rendered, in which he was sentenced to imprisonment for not less than six months nor more than ten years.

Numerous assignments of error are made by appellant, but as we view the case it will be necessary to consider but one, viz., that the evidence is insufficient to support the verdict.

It is undisputed that deceased met his death at the hands of appellant, and the state, as we understand it, practically concedes that if the evidence shows that but one blow was inflicted by appellant, the homicide was committed in self-defense and is justifiable, and there is not sufficient evidence upon which to base a conviction.

Upon the trial, appellant testified in part as follows:

"When he [deceased] went to push the boards out of the headgate I took hold of his right arm with my . . . . right arm and detained him from taking the checks out of the gate; told him to wait a moment and lets reason this thing out and do it in a proper way, and immediately as soon as I let go of his arm, without saying a word or anything, he . . . . hit at my head with his shovel . . . . As he struck at my head I threw up my shovel. I was holding my shovel in my right hand and threw it up and caught the lick on the shank of my shovel, broke his blow, stopped it from hitting me. Then he struck at my head, this time striking more directly down so that I was not able to catch the lick on my shovel, but managed to dodge his lick. He immediately threw his shovel back to strike the third blow at me and I struck at him, aiming to hit his arm and stop him from striking me. As I struck he ducked down and a little forward and caught the blow on the right side of his head. He turned just slightly until he faced the ditch and pitched forward into the ditch with his shovel under him. As soon as I seen that I knocked him down I jumped on the bank where he had been standing and stood and looked at him for a second or so to see if he wasn't going to get up, and then I stepped down into the ditch and took hold of him and lifted him on to the ditch bank and looked at him a minute or two longer to see if he appeared to be going to get up and I stepped down into the ditch and picked his shovel up and put it on the bank and took my shovel and went down to Mr. Bernard's place and called the sheriff . . . . I was standing in the cut in the ditch bank; the water was running out onto the beets; it was muddy. If I moved east I went right into the soft mud, if I went west I went into the irrigating ditch. If I tried to retreat . . . . I had to go up over the bank about eighteen inches or two feet high, and also sweet clover growing there that was four or five feet high, which made it practically impossible for me to get out of the way.

"Q. Now, at the time that you aimed the blow at Mr. Koury, did you intend to take his life?

"A. No, sir.

"Q. Were you afraid at that time?

"A. Yes, sir.

"Q. Why did you strike at him?

"A. Because I knew that my person was in danger from his blows, the way he was striking at me, and I wished to stop him from striking at me.

"Q. Where did you hit him at that time?

"A. As near as I could tell I hit him on the right side of the head, just in front of the ear.

"Q. What part of the shovel did you strike with? Which way did you hold the shovel?

"A. Well, it was the back of the shovel that struck Mr. Koury.

"Q. The back and flat side, in this manner?

"A. Yes, sir.

"Q. I will ask you if you struck Mr. Koury a blow upon the front of the skull, on the head, at a point approximating this point, or any way about that point as shown on this exhibit?

"A. No, sir, I did not.

"Q. The only place you struck and the only time you struck...