State v. Haffa

Decision Date07 June 1955
Docket NumberNo. 48479,48479
Citation71 N.W.2d 35,246 Iowa 1275
PartiesSTATE of Iowa, Appellee, v. Frank A. HAFFA, Appellant.
CourtIowa Supreme Court

Ralph W. Travis and Beecher & Beecher, Waterloo, for appellant.

Dayton Countryman, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., K. L. Kober, County Atty., and Wendell Holmes, Asst. County Atty., Waterloo, for appellee.

LARSON, Justice.

On July 9, 1953, the defendant Frank A. Haffa was indicted by the Grand Jury of Black Hawk County and accused therein of the crime of murder in the first degree. A plea of not guilty was entered on July 15, 1953, and on trial to a jury commenced September 28, 1953, defendant was found guilty of the included offense of manslaughter and judgment entered accordingly. Defendant's motion for a new trial was overruled on November 25, 1953, and he was sentenced to imprisonment in the Iowa State Penitentiary at Fort Madison, Iowa, for not to exceed eight years, and to pay a fine of $1,000. From this judgment and sentence he appeals.

Arvey C. Leeper, a resident painter and former yardman employee of the defendant, died between 12:30 and 1:00 A. M. on June 7, 1953, from the effects of a bullet wound received about 9:30 P. M. Saturday, June 6, 1953, at the property located at 41 South Hackett Road in Waterloo, Iowa, in which Mrs. Haffa resided and which was owned by the defendant.

The defendant, at the time of the acts charged, was 72 years of age, a retired dentist, with his living quarters in the Walnut Court Apartments, a building housing 117 families, of which he was the acting manager. He also operated the Black Hawk Investment Company, owned considerable property, and acted as a receiver for bankrupt ladies' wear stores.

On June 6, 1953, defendant testified he received a telephone call from his wife at 41 South Hackett Road telling him she had received a call that 'she didn't like', and as he had intended to take the clean laundry out there anyway, he immediately drove to the house, a trip which took about fifteen minutes.

During the past year there had been some vandalism at 41 South Hackett Road which had been reported to the sheriff's office, and defendant had been instructed, when he received information on trespassers upon the property, to get out there as quickly as he could and find out who such persons were. Mrs. Haffa had been loaned a gun for her protection at one time by the deputy sheriff. This premise was a five-acre tract, completely fenced, with a steel gate on Hackett Road. There were several buildings on the grounds, including the house some 150 feet from the road and the garage some 200 feet from the gate. There were many trees and bushes on the grounds, two yard lights, and an eight-foot cement drive from the gate to the garage. The drive widened out to sixteen feet south of the south door of the residence to provide double parking. There was a large elm tree across the drive southeast of the south doorway.

When defendant arrived at these premises about 8:30 P. M. the gate was open and all yards lights were off. Only a low voltage bulb over the kitchen sink was lighted in the house. He testified he drove into the garage, took the laundry into the house and visited with his wife for about thirty minutes. Then he told her to lock all doors and went out the east or back door to inspect the premises. He took a six-shot .38 caliber Colt police positive revolver loaded with steel-jacketed bullets from his car and went 'to look around.' He did not take a flashlight. It was about 9:30 P. M. when he saw a taxi stop in the driveway across the street and then turn around and go back the way it came. This taxi brought the decedent who had been drinking, but was not drunk. Defendant said shortly thereafter a man appeared at the back or east door, knocked and demanded admittance. When there was no answer from within, he kicked on the door and threatened to break in for some five minutes, and then walked on the drive south of the house to the south entrance, where he again tried to gain admittance. This doorway or porch entrance is approximately five by five and seven feet high. The sides are cement blocks, and four cement steps lead up to it, with wrought iron railings about three feet high on both sides of the steps. It was a very dark night. The defendant said from his hiding place behind the large elm tree he saw a human form go up into that porch entrance and heard him kick and pound on the door and demand entry to the house. After waiting four or five minutes defendant stepped from behind the tree and said he called out 'This has gone on long enough. * * * Come down out of there.' Almost immediately he fired two shots into the porch entrance. Their course through the door and interior of the house was traced by the officers, and the bullets recovered. The officers testified one bullet went through the door 10 3/4 inches to the left of the center as you face it, and 2 feet 6 1/2 inches from the bottom. The other went through the door 7 3/4 inches to the right of the center and 4 feet 6 1/2 inches from the bottom of the door. The defendant claimed he fired a warning shot into the ground just before firing into the entrance, but that bullet was never found. None of these bullets hit the decedant, but he made haste out of the dark entrance and down the steps toward the defendant who had moved up almost across the cement drive. The fatal shot was fired after decedent reached the sidewalk, and this bullet struck him in the left arm in the medial aspect of the anterior portion of the shoulder. The bullet followed a downward and backward course of forty-five degrees to the vertical mid-bone of Leeper's body, passing through the left lobe of the lung and through the seventh thoracic vertebra. Two doctors testified that in order to receive the type of bullet wound that Leeper received, the gun would have had to be discharged above Leeper's left shoulder at the same angle of forty-five degrees that the bullet followed after it entered the body. They also testified the severed spinal cord would have rendered Leeper immobile and would have caused him to drop in his tracks. In addition, Leeper had abrasions on the top part of his nose, upper lip, and on the right knee. His trousers had a tear in them at the right knee, which was not a bullet tear.

After the shooting, defendant called the officers and, when they arrived, Leeper was lying on his back partly on the grass to the right of the walk to the house and partly on the driveway, feet southeasterly. The first statement made to the officers by defendant was: 'That is the guy that threw the rocks in my window', and then he said: 'I shot once at his legs, and then he started at me, and I let him have it right in the face.' When the decedent was viewed in the car lights, defendant acknowledged he knew the fellow and that it was Slim Leeper. The decedent died in a Cedar Falls hospital without regaining consciousness. Certain photographs taken by one of the officers were admitted as exhibits. Two of them showed scuff marks on the south and east doors near the bottom, which defendant claimed were made by Leeper's shoes. Mrs. Haffa did not leave the house that evening and did not testify in the trial.

The issues raised and argued by the defendant in the appeal are that the trial court erred (1) in overruling defendant's motion for a new trial for the reason that the alleged misconduct on the part of the assistant county attorney was shown to have prevented defendant from having a fair and impartial trial, (2) in overruling the defendant's motion for a directed verdict at the close of all evidence for the reason that the evidence failed to show as a matter of law that defendant did not act in self-defense at the time of the killing, and (3) in overruling defendant's motion to withdraw the charges of first- and second-degree murder from the jury in that there was no evidence introduced in support of either of such charges.

It is the State's contention the facts, reasonable inferences and permissible presumptions disclose malice aforethought, deliberation, premeditation and an intent to kill. They point to the use of the deadly weapon upon the decedent in a darkened porch, the decedent's unsteady but understandable haste in getting out of the doorway, accounting for a fall down the steps explanatory of his face and knee injury, plus the time lapse between shots, the course of the fatal bullet through decedent's body and his position when found, as proof of defendant's aggression and as furnishing the necessary elements of first-degree murder upon which a verdict by the jury could be justified. While one may certainly use such reasonable force as necessary to repel an attack upon one's property and family, apparently this attack from the rear without adequate warning, this shooting-of-fish-in-a-barrel manner of defense, did not appeal to the jury. While under the testimony of the taxi driver who brought Leeper to the premises, watched him walk unsteadily into the driveway, and who stated Leeper was in a jovial mood and told him he was going out to see his girl friend, and other similar evidence, the jury may have inferred that Leeper was not a prowler and was perhaps known to the defendant, it obviously believed a lesser verdict than first-degree murder was proper.

Other pertinent facts appear in the opinion.

I. Every person accused of a crime is entitled to a fair trial. It is so provided by the Constitution, statutes, and by general pronouncements of the courts. We have so announced many times and specific cases need not be cited. The State is also entitled to a fair trial. We have on many occasions reviewed matters where it was contended, as here, that there was misconduct on the part of the county attorney which deprived defendant of a fair trial.

Mere misconduct of counsel however is not enough alone to require the granting of a new trial,...

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