State v. Heinz

• Decision Date: 21 September 1937
• Docket Number: 43487.
• Citation: 275 N.W. 10,223 Iowa 1241
• Parties: STATE v. HEINZ.
• Court: Iowa Supreme Court

275 N.W. 10

223 Iowa 1241

STATE v. HEINZ.

No. 43487.

Supreme Court of Iowa.

September 21, 1937

Appeal from District Court, Dubuque County; D. E. Maguire, Judge.

The defendant, by a county attorney's information, was accused of the murder of David Fox. The jury returned a verdict of guilty of the crime of murder in the first degree. Defendant appealed.

Affirmed.

Criminal intent is inferred from intentional use of deadly weapon in deadly manner, unless circumstances in evidence rebut such presumption.

C. E O'Connor and John J. Nelson, both of Dubuque, for appellant.

John H Mitchell, Atty. Gen., Buell McCash, Sp. Asst. Atty. Gen., and John L. Duffy, Co. Atty., of Dubuque, for the State.

STIGER, Justice.

On July 25, 1935, a county attorney's information was filed charging the defendant, Marlo Heinz, with the murder of David Fox. The defendant entered a plea of not guilty. The jury returned a verdict of guilty of murder in the first degree and determined that defendant be punished with death. On July 23, 1935, Fred Fox and his wife were residing on their farm near Holy Cross, Dubuque county. They had two children, Fred Fox, Jr., referred to in the record as Junior, eight years old, and David Fox, six years of age. Mrs. Fox is a sister of the defendant. Defendant has a wife and three children. The farm buildings are south and west of the dwelling house. South of the barn is a large pasture in which Fox kept his cattle. A creek fed by a small spring runs through the pasture, and between the creek and the farm buildings is a tract of timber. It was in a shallow pool in the creek about one-half mile from the house that the dead body of six year old David Fox was found in the late afternoon of July 23d.

Fred Fox had driven his car to the home of defendant in Dubuque, Iowa, on July 23d and about 3 o'clock in the afternoon Fox, Heinz, and Pete Reis started for the Fox farm. They stopped once and drank some beer. They then stopped to let Reis out of the car at his home, where they drank some hard liquor. Reis gave Fox a pint of the liquor which he took with him. Defendant claims they each had three drinks in front of the house in the car, two more drinks in the house, and one drink from the pint bottle on the way to the Fox farm.

They arrived at the farm about fifteen minutes to 4 o'clock. Fox layed down on the davenport and the defendant changed his clothes and engaged in conversation with his sister. They talked about the garden, which he had helped her plant, and Mrs. Fox, being busy, told the defendant the children would show him the garden, which they did. Mrs. Fox testified that the defendant asked what time the children went for the cows and she told him about 5:30. At this time it was about 4 o'clock. After the defendant and the two boys had seen the garden, David came back to the house, and his mother asked him if he was going after the cows and David replied that he guessed so and went out of the house. That was the last time she saw David alive.

The theory of the State is that the defendant committed that variety of sodomy known as pederasty on the body of his nephew in the anal orifice and to conceal the crime strangled him to death.

The contention of the defense is that David, in attempting to run down the bank and cross the creek to reach his uncle, the defendant, tripped at the top of the bank and fell face downward, lying on his face in such a way that he turned a complete somersault, thereby twisting his neck muscles, causing insensibility, and because of the swelling of the neck muscles strangulation was caused, which in turn produced the ecchymosis and cyanosis found on the neck of the child; that when he fell he was badly frightened, which caused complete relaxation of the anal muscle.

Defendant admits that, after they saw the garden, David and Junior went down to the creek with him.

The testimony of Junior, David's surviving brother, as to the circumstances under which they went down to the bank adjacent to the creek and the events that followed, is as follows: " When Uncle Marlo came out to the farm, he changed his clothes and talked with mother. Then we went out to see how the garden was. I took some swings on the swing and Uncle Marlo went down to the chicken house. When he came back he asked me if I would like to take a walk and I said yes so we went down to the pasture and saw some cows there. Uncle Marlo layed down on the bank and told me and David to catch some bugs in the creek and we caught them with our hands and showed them to Uncle Marlo and when we got through playing around, we went up on the bank where Uncle Marlo was lying down and laid down with him. He talked to us about going fishing and swimming; then we played around some more and Uncle Marlo asked me to go up and see if supper were ready. When I left, David was lying on the bank next to Uncle Marlo. I ran up to the house and hollered to see if supper was ready and mother told me supper was ready and I should go down and tell David and Uncle Marlo. I ran back down and when I got down to the creek where I had been lying I did not see anybody, and after a while I saw David in the water. He was not very far from where he had been lying down. I tried to take him up but I couldn't. I lifted his hand and his hand was cold. I ran up to the house to tell mother; then I ran down to Meyers to call the doctor, and when I was running up to the house I saw Uncle Marlo and he was on the other path walking away from the creek. I said to him ‘ David is drowned’ ; and he said, ‘ Oh’ ."

The defendant testified substantially as follows: " After we had seen the garden, we came back towards the house. One of the children asked me if I saw the chicken house. I said I hadn't been there so we started down there. I don't know if we looked for eggs or just walked around and came out again. I think the children went towards the yard and I went back down to the corn crib where I put the bottle and took a drink and put it back. Then I went towards the hog pasture and I went over and crawled through the fence and when I got on the other side of this fence, one of the children hollered to me to know where I was going. I said I thought I would take a walk down to the pasture to bring the cows home. They said they wanted to come along so I waited for them. Then we headed down towards the pasture where the cows were kept and then through another barbed wire fence and walked till we came to the creek. When we got there I sat down and rolled a cigarette. As I remember it, it was a pretty nice day. It seems to me the sun was out. I know it was warm because I didn't have any shirt on. I had on a pair of bib-overalls, cut down the back and straps going over the shoulders, and my shoes and sox and sleeveless undershirt that goes with the shorts. While I was rolling the cigarette something was mentioned by David or Junior about wading and I said ‘ well, if you kids want to go wading go ahead’ and whether they went in wading or not I don't know. Then I laid down there and dozed off I guess. I didn't go for the cows at that time. It was a little early to bring them up yet. I don't know just what I thought on it for I was just going to sit around or lay around there for a while. Then the children came up from the creek. I guess they came from the creek, I don't know where they came from because I was asleep and that was the first I had seen of them since I saw them go toward the creek. The next time I saw them was when Junior was saying something about going home to see if supper was ready. He woke me up. I think I told him to go ahead or something. I stayed right where I was. I had been lying on my back. I don't say that I was sound asleep, but I was dozing or whatever you would call it. After Junior left, I said to David that I was going to find the rest of the cows. I started down towards the creek and David sat up. He raised up and I hollered back to him if he wasn't coming with me and he said ‘ no, I think I will go to the house with Junior’, but I kept on over the creek. I could notice the effect of all this liquor I had to drink. I was not awful drunk. I would consider I was pretty drunk. I crossed the creek on the other side of which is a gully which runs to the south, and there is a hillside where the cows lots of times pasture and you have to walk part ways up or sometimes all the way up, but I only went part ways and I layed down again because I felt sick. I think I must of went to sleep. I don't know but I think I did, and the thing that woke me up I thought it was Junior or David yelling. I heard someone yelling ‘ Uncle Marlo’ and I then started to run back towards the creek where I had been. I came out right where this bank runs in the creek is where I saw David lying in the water and I walked in, raised him up, and I think I took my cap off and dipped it in the water and washed his forehead and face. After I had tried to bring him to or do something for him, I realized he was dead and I think I just dropped him there and started for the house."

Dr Bries testified for the State: " I was summoned to the Fox farm on July 23, 1935, and arrived there about a quarter till six in the evening. When I arrived there Mrs. Fox told me that one of her boys had drowned. When I arrived at the creek the boy was dead. I made an examination of the body. I found his lungs clear and concluded that he had not drowned. I found a cut on his lower lip about two inches long and about one-half inch deep and blood in his left ear. I could not discover any skull fracture. I noted a definite bluishness from the middle of the neck up extending over his face, ears and up towards the forehead. That immediately made me suspicious of foul play. I asked Marlo Heinz, he being with the boy,...