State v. Hessenius

• Decision Date: 24 March 1914
• Citation: 146 N.W. 58,165 Iowa 415
• Parties: STATE v. HESSENIUS.
• Court: Iowa Supreme Court

165 Iowa 415

146 N.W. 58

STATE

v.HESSENIUS.

Supreme Court of Iowa.

March 24, 1914.

Appeal from District Court, Cherokee County; William Theophilus, Judge.

Trial upon an indictment for murder. From a verdict and judgment of conviction of manslaughter, the defendant appeals. Affirmed.Herrick & Herrick, of Cherokee, and Faville & Whitney, of Storm Lake, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

WITHROW, J.

I. The defendant was charged with murder in the first degree, in having on the 31st day of January, 1912, killed his wife by strangulation by means unknown. The trial resulted in a verdict finding him guilty of manslaughter, and from a judgment upon the verdict this appeal is brought. The claim of the defendant was that his wife came to her death by an accidental fall from a porch, from the second story of the house, to a concrete sidewalk immediately below. No eyewitnesses testified to the immediate act or accident resulting in her death.

In the evidence introduced on the part of the state as to the circumstances immediately surrounding the death of Mrs. Hessenius, that of one Harvey Geibe was as follows: “My occupation in January last was hauling cream. I was at the Hessenius home that day between 10 and 11 in the forenoon. When I first went to the home that morning, I saw the defendant coming from the house. He came out with the cream to the gate and stepped a couple of steps to the south to meet me, and I was standing in the back of my wagon, and he set the cream in front of me, and I said, “Good morning,” and he said “Good morning,” and he turned around and went back to the house. I got out and set the cream on the walk and took a bottle out and put his number on it; and then Mr. Hessenius came out and told me his wife had slipped and hurt herself, and for me to run and tell the neighbors. I didn't ask him any more, but went. He said he tried to get them over the telephone but couldn't. I went to Jim Lowry's place about a quarter of a mile east and delivered his message to Mr. Lowry, turned around, and drove over to Hessenius' place for the cream I had left there, and put the cream on the wagon, and put his weights down, and I thought I would step to the house and tell him I told Lowrys. I saw blood there, and I walked in; I saw the blood just off the porch, the south porch, on the sidewalk. When I went in, I saw Ernest sitting there beside his wife, who was lying there on the floor. Her face was black, she was lying on her back with her hands beside her. Mr. Hessenius was down beside her putting cold water on her throat with a cloth. He had a pail of water there. When I came in, he said, ‘Do you think she is dead?’ And I said, ‘It looks very much like it.’ I turned around and went out this dining room door that I had come in, and said I would go after Lowrys with my team. After I came out of the dining room door, I went onto this south porch alone, and Ernest came after me, and said: ‘Don't go. Stay here with me. People will think I done it.’ I said, ‘O, no, Ernest! People wouldn't think anything like that of you.’ He didn't seem to be excited very much. He was sitting there putting the water on her. After he had asked me if I thought she was dead or not, he started to cry then. I didn't see any one else in the house there except Mr. Hessenius, and Mrs. Hessenius lying on the floor at that time. After Mr. Lowry and his wife came, I saw the little girl.” Cross-examination of this witness developed more details not necessary to our present purpose.

J. H. Lowry, who was called by Geibe, testified: “When I arrived at the Hessenius home, it was about 11 o'clock. I met Mr. Geibe in the yard when Mrs. Lowry and I drove in. I went right into the house and found her lying on the floor of the kitchen. She looked dead to me. I saw the defendant when I went into his home at that time. He was kneeling down close by his wife. I don't think that I said anything to him when I went into the house and into the kitchen. After a little bit he said to me that his wife fell off the porch. Where Mrs. Hessenius was lying was wet and bloody. There was blood flowing all over the floor. The defendant was kneeling or sitting by his wife bathing her face and the wounds with a cloth. I observed the wounds upon her face at that time. I don't know that I can just tell the real location, but they were on the side of the forehead around what we call the temples. I noticed Mrs. Hessenius' face at that time. It was dark. The lips seemed to be swollen, and her eyes seemed to be swollen. It was dark and swelled. I don't think I could see the pupils of her eyes. The face was bleeding some at that time. The color of her face in life was not the same as it was this time that I saw her. Her face appeared to be black or purple. I observed marks or rings upon her throat or neck. I didn't examine the back of her neck or lift her head or body at that time. The face and neck was all dark. I don't know as I noticed the condition below that. Mrs. Hessenius wore a loose turned-down collar. The face had kind of a bloated appearance, and the lips appeared to be swollen. I don't think I noticed any marks or bruises or cuts or dents upon the lips. I did not observe her hands or arms or fingers or any contusions on them.” The witness testified to seeing blood on the porch, on the sidewalk and snow just outside the house to the south, and that it appeared to be centered in one place. It was also on the floor of the dining room, and in other places about the house, and on the lace curtain of the door, above the knob, and there were pieces of broken glass over the floor. He testified that defendant wandered through the house, moaning and crying; that he (the defendant) said he was in the barn when he first heard a scream or noise; and that he came into the house and found her lying on the dining room floor. He said he thought she had been hurt by falling from the porch immediately above the walk on which there was blood.

The evidence of Mrs. Lowry as to conditions about the house was of similar import.

Dr. Ihle, who was called to the house, described the condition of Mrs. Hessenius. Her face was purple; eyes, nose, and lips swollen; tongue protruding beyond the point of her teeth; a heavy dark black ring around her neck. He asked the defendant how it happened, and he said he thought she fell off the front porch. The witness found a cut into the skull at the border of her hair, a wound under the right temple, and a cut under the eyebrow. The eyeballs were protruding. He testifies to having seen tracks in the snow on the balcony or upper porch, but remembers one set only, and near the railing it appeared as though a foot had slipped. There also was evidence to the effect that near the walk below the porch, and near by where blood was seen upon the snow, broken pieces of an earthen vessel were found.

Further evidence on the part of the state, developed from the post mortem examination, was to the effect that the brain was normal throughout, with the exception that it contained an excessive supply of blood. The medulla was congested, but aside from that was normal. There were no fractures of the spinal column and no discoloration of the bones composing the spinal column. The spinal cord was normal throughout its entire length, not being broken or fractured at any place or in any way whatever. There were no fractures of the skull. All of the organs of the body were practically normal. There was a settling of blood in the lungs, especially in the back part. Beginning at the back of the tongue and over the entire pharynx was a ecchymotic spot. This spot involved the top layers of the epiglottis. The front part of the epiglottis was normal, except near where it was attached, and on this part there were ecchymotic spots the same as on the back of the tongue. The esophagus was normal. The windpipe was normal near the point where it joins the lungs, but up near the larynx there were two black and blue spots, one on each side. The left one was about one-eighth by one-sixteenth of an inch and the right one somewhat smaller. The Adam's apple contained a couple of small black and blue marks just below the vocal cord.

These conditions developed in more detail were the basis of opinion given by expert witnesses as to the cause of death; those on the part of the state stating it to have been strangulation, and on the part of the defense that it probably resulted from a fall.

Evidence introduced on the part of the state tended to show that there had been discord in the domestic relations of the parties, and it is the claim of the state that the immediate provocation to the act which it charges against the defendant arose in the desire of Mrs. Hessenius, on the day of her death, to go to a church dinner. We need not more fully go into the evidence upon this branch of the case. While the facts tended to show domestic troubles, they were not admitted by the defendant, excepting as to some instances, and these remote from the time under inquiry; and it was his claim, with evidence tending to support it, that in the more recent period up to the time of her death their relations had been harmonious.

The sheriff of the county testified that he saw the defendant at his home on February 2d, when the county attorney and physicians were there. He states that at the time the county attorney said to the defendant, after inquiries had been made of him as to the circumstances and his acts, “Hessenius, you have choked your wife to death,” and that the defendant made no reply, but went to get a drink of water.

II. The foregoing statement presents as much of the record of the evidence as is necessary to a proper understanding of the errors urged.

[1][2] Upon the trial two distinct theories were urged as to the cause of death: That by the state, that it was caused by strangulation; of the defense, that it resulted from...