State v. Hickman
| Decision Date | 03 April 1923 |
| Docket Number | No. 35123.,35123. |
| Citation | 195 Iowa 765,193 N.W. 21 |
| Parties | STATE v. HICKMAN ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cass County; Geo. W. Cullison, Judge.
The defendants were jointly indicted by the grand jury of Page county for the crime of murder in the first degree. A change of venue was taken to Cass county. They were tried to a jury and found guilty, and life sentences imposed. This appeal has to do with defendant Benjamin. Affirmed.John J. Hess, of Council Bluffs, Earl R. Ferguson, of Shenandoah, and C. B. Clovis, of Atlantic, for appellant.
Ben J. Gibson, Atty. Gen., John J. Fletcher, Asst. Atty. Gen., W. E. Mitchell, of Council Bluffs, George A. Anderson, of Clarinda, and L. H. Mattox, of Shenandoah, for appellee.
We think it advisable at the start to set out the evidence in a general way, so that the 50 points made may be better understood.
The crime charged in the indictment was committed late in the afternoon or in the early evening of February 12, 1921, in Page county, at a little town named Bingham six or seven miles southeast of Shenandoah on the railroad. An hour or two before the shooting there was a crap game at the railway Y near the depot in Shenandoah, in which a number of men participated. While the crap game was going on the defendants came, and, at the point of revolvers, forced the crowd of men who were participating in the game to line up with their heels to the rail, and took from the persons of different ones considerable sums of money. The defendants told the other parties that they were not going to take any chances, and that they would drop the first fellow that moved. Thereafter defendants were seen on the way to Bingham. A short time after the robbery some of those who were present informed the city marshal of the occurrence, and about half an hour thereafter the deceased, Albert Patton, who was a deputy sheriff, was also informed of the transaction, and requested his informant to go with him to identify the men who had perpetrated the holdup. Patton telephoned to Bingham to have men there arrest the parties and hold them until he should come. Patton and two or three others took the 6:54 train at Shenandoah, arriving at Bingham a few minutes after 7 o'clock. As the train approached the depot in Bingham, defendants were seen running ahead of the train along the west side of the track towards some tie piles a short distance northwest of the depot. About the time the train passed the tie piles, or soon after, and before the train stopped, the city marshal said to Patton, “Here they are Bert,” and Patton came across from the east side of the train and jumped off on the southeast side of the station and right–hand side of the train. The marshal says further:
Another witness who was present says that he just heard one shot fired before he got back on the train; that he was excited and got back on the train as soon as he could and he heard several shots fired. As Patton and perhaps some of the others stepped off the train, Patton started back towards the tie piles and called to the defendants to halt and surrender. Thereupon immediately the defendants shot in the direction of Patton, who was then, according to the testimony of some of the witnesses, 15 or 20 feet from the tie pile farthest to the north. Other witnesses put it at a somewhat greater distance. He fell and was carried to the depot. He died before the depot was reached. A number of shots were fired in a short space of time. There is evidence tending to show that the defendants admitted that they fired five shots, one of them three and the other two. The other parties with Patton fired several shots. Patton himself fired two, one of them towards the tie pile and the second one in the air. All the witnesses for the state say that no shots were fired by Patton or those with him until after defendants began shooting.
The defendants did not testify as witnesses. Testimony was introduced in their behalf of witnesses who were inside the car, who say they heard shots on the outside of the car, and that it seemed to them that the first shots were near the train. These witnesses do not all agree as to just where the shots seemed to be. The record shows, we think, that the first shots were fired at about the time or very soon after the train had passed the tie piles, so that the tie piles were but a short distance from the train. It is said by appellant that there is a conflict in the testimony as to whether the shooting was first commenced by the defendants behind the tie pile or those who had stepped off the train. No such inference can be drawn from the evidence. It is from this claim that counsel for defendants seek to build up a case of self–defense. They predicate error upon the refusal of the trial court to instruct the jury on that proposition. The contention is that defendants did not know that Patton was an officer, or that he was attempting to make an arrest, and that they supposed and had a right to suppose that they were being attacked by others, and that they defended themselves from such attack. There is no word of evidence from any witness who claims to know whether Patton and those with him fired the shots, if they did commence firing first, in the air to frighten defendantsinto a surrender, or whether such shots, if so fired, were in the direction of the defendants. There is no evidence from the defendants or any other person that Patton or those with him were shooting at the defendants, or that defendants were in danger of bodily harm, or that, as reasonable men under the circumstances, they anticipated harm. In other words, there is no evidence that these and other necessary elements were present which would justify a claim of self–defense by the defendants. We have examined the evidence carefully on this point because appellant argues this proposition more strongly than some others. This is a skeleton outline of the case. We have given the tendency of the evidence. Though there may be at some point some disagreement as to some of the circumstances, the jury could have found as we have indicated.
Some other circumstances will be referred to briefly tending to establish the guilt of the defendants, their own consciousness of guilt, their anticipation of arrest, and other matters. Some of these circumstances, particularly as to alleged conversations with defendants in the jail and on the train afterwards, are denied by other witnesses introduced by the defendants who were present. At the time of the transaction it was getting dark. There were switch lights and other lights in the neighborhood. The marshal and perhaps some others fired towards the tie pile after Patton fell. The defendants were arrested in Missouri about the 14th of February, 1921, and were brought back to Iowa three or four days later, and were taken to Council Bluffs. Three or four witnesses testify that on the train at this time they heard a deputy sheriff ask defendants if they knew they had killed Patton. They made no answer. The deputy said, “Did you know that you hit him?” and one of the defendants said, “We was so close to him I don't see how we could miss him.” The defendants were sitting together. Defendant Benjamin at that time said he had a big white hat on the night Patton was killed, and that he hid the hat in the culvert; that he had another hat in his pocket; that he changed his hat; that was a Western cowboy hat and would attract attention. In this conversation defendants said that after the shooting they went back to the track or road that runs along the track, got into a field, took a southeasterly direction to a barn, crawled through a gate at the fair ground, and took breakfast in Missouri the morning after the shooting. They also said that they stayed in a barn Sunday night; that, if any one had stopped them, they would have said they were hunting the Hickman boys. In the conversation in the Missouri jail Benjamin said, “Who are you?” and witness said, “I am the sheriff of Page county.” Defendant said, “The hell; I thought I killed you at Bingham,” and witness said, “No; you killed my deputy,” and defendant said, “It's too bad it was not you.” Later the deputy sheriff asked defendant Arthur Hickman, “Did you know that you hit Bert?” and he says, “Yes; I couldn't have missed him; he was not over 10 feet from us.” When he said that, Benjamin was sitting right behind him and said nothing.
It may be necessary to state further details of the evidence in the discussion of the different points. The verdict has ample support in the testimony.
[1][2] 1. The appellant raised the question, by motion to quash the indictment and by motion for directed verdict at the close of the state's testimony, as to the right of a woman to act as a grand juror. It appears that the grand jury panel of 12, from which the grand jury which returned this indictment was drawn, was composed of 11 men and one woman. It is appellant's contention that a woman is not a competent grand juror. It is not claimed that the woman served as a member of the grand jury which returned the indictment. The record shows that before the indictment, and before the grand jury was sworn, two cases were docketed against the defendants; that is, at that time the charge was against them separately. In each case the defendants were given an opportunity to challenge the jurors and the panel, and the record shows that they waived all challenge...
To continue reading
Request your trial