State v. Howard
| Decision Date | 21 June 1921 |
| Docket Number | No. 33297.,33297. |
| Citation | 191 Iowa 728,183 N.W. 482 |
| Parties | STATE v. HOWARD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Page County; E. B. Woodruff, Judge.
Defendant appeals from a judgment of conviction of the crime of murder in the second degree sentencing him to imprisonment in the penitentiary at Ft. Madison at hard labor for 15 years. Affirmed.Wm. F. Stipe and H. E. Davidson, both of Clarinda, for appellant.
Ben J. Gibson, Atty. Gen., and Bruce J. Flick, Asst. Atty. Gen., for the State.
The indictment in this case charged the defendant with murder in the first degree, committed August 22, 1919, in Page county, Iowa. The following will suffice for a general statement of the facts relating to and surrounding the occurrence: The tragedy occurred on the fair grounds in or near the city of Clarinda shortly after midnight on the date mentioned. The defendant, who was employed by the fair association, was assuming to act as a peace officer in the capacity of a deputy sheriff, and had been for several days and during the fair. About midnight, perhaps a little thereafter, the defendant and one Pearl Anderson, who was also employed and serving as a police officer on the fair grounds, went to a tent, referred to in the evidence as the implement tent, which was about 40 feet in length, or diameter, the sides of which were open. When they arrived at the tent, they found Terrance Welch, the deceased, William Frederickson, and John Green sitting near the center of the tent. The tent was lighted only by a nearby electric street lamp, but, according to the testimony of the witnesses, the light was sufficient to make the outline of the parties clearly visible at least. After the exchange of a few words between Welch and Howard, an angry altercation occurred between them in which there was considerable profanity and, according to the testimony of several of the witnesses, some threats made by the defendant, who, in the meantime, had taken a 38-caliber Hopkins & Allen pistol from his pocket, was holding it in his hand, and during the conversation pointed it at Welch. Welch's coat, which he had removed, was lying on the ground, or on a nearby platform. After the controversy began, Welch reached for his coat, whereupon the defendant stepped upon his fingers and commanded him to be still. The defendant testified that his purpose in stepping upon Welch's fingers was to prevent him from getting the coat, in which he feared he had a gun concealed. The defendant directed Anderson to call Frank Pennington, the sheriff, which he did. Before the sheriff arrived, however, Milton Stafford, another peace officer, entered the tent, at which time the defendant was holding Welch's coat and had the Hopkins & Allen pistol in his hand. Welch, observing Stafford, turned to him and said in substance, “Here is the law; I will go with this man,” and almost immediately took hold of Stafford's right arm with his left hand and the two started to leave the tent in a southeasterly direction. Before starting to leave the tent, Stafford testified that he told defendant to put up his gun, but this is denied by the defendant. The defendant threw Welch's coat onto the platform, and Stafford picked it up and gave it to Welch.
The evidence showed that both the defendant and Welch called each other vile names, and that Howard threatened to shoot, but no shots were fired until Welch and Stafford got outside of the tent, after walking perhaps 30 or 35 feet. The defendant followed Stafford and Welch, and when the latter were about two or three steps from the tent Welch turned and attempted to strike the defendant with his fist. Almost instantly thereafter Howard fired a shot, the bullet entering Welch's back just below the scapula, taking a somewhat upward course, killing him instantly. There is some conflict in the evidence as to what the defendant said after the shooting, several of the witnesses testifying in substance that they heard the exclamation from some one, “My God! you have shot him!” and the defendant reply, “Shut up or I will give you the same thing.” This was emphatically denied by the defendant, and the witnesses vary considerably in their testimony as to exactly what the defendant said. One or more witnesses testified that the defendant said he shot in self-defense. The defendant testified upon the trial that he had no intention of killing Welch, but only intended to shoot him in the arm. Stafford testified that he and Welch took a couple of steps after the latter struck at the defendant before the fatal shot was fired. The evidence all shows that but a few seconds elapsed between the attempted assault and the report of the pistol. Welch resided at Creston, and was employed as a waiter in a dining hall on the fair grounds. While the defendant testified that Welch was doing some boastful talking when he approached the implement tent, it does not appear that he was creating a disturbance of any kind, nor that the implement tent was a rendezvous for immoral persons, or that liquor was kept therein for sale or use. It is the claim of the defendant that his brother, Henry Howard, had however, informed him that deceased was bootlegging on the fair grounds, and that he had purchased a quantity of liquor of him, the delivery being made in a large Chautauqua pavilion on the grounds. Other facts material to the discussion and decision of the alleged errors of the court presented for review will be referred to later. The defendant relied upon the plea of self-defense and that he was at the time of the tragedy acting in his lawful capacity as a peace officer.
[1] I. The pistol from which the shot was fired and exploded and several loaded shells, which were removed from the pistol after the shooting, were offered in evidence. Counsel for defendant objected to the admission thereof upon the ground that all of said exhibits were before the grand jury, but were not properly identified and filed in the office of the clerk of the district court with the minutes of the testimony, as required by section 5258 of the Code. The objection was overruled, and this ruling is assigned as error. The statute requiring exhibits used by the grand jury during its investigation to be filed in the office of the clerk with the minutes of the testimony is directory only. State v. Mulhern, 130 Iowa, 46, 106 N. W. 267;State v. O'Malley, 132 Iowa, 696, 109 N. W. 491;State v. Ottley, 147 Iowa, 329, 126 N. W. 334, and the failure to file the same in the clerk's office did not render them inadmissible. State v. Mullenhoff, 74 Iowa, 271, 37 N. W. 329;State v. Boomer, 103 Iowa, 106, 72 N. W. 424; State v. Ottley, supra.
[2] II. Henry Howard, a brother of the defendant, called as a witness in his behalf, testified that he told the defendant that Welch was a dangerous man, and that if the defendant attempted to arrest him he might get hurt. This was stricken upon the motion of counsel for the state, and this ruling is assigned as error. The record is not quite clear at this point, but, as we understand the ruling of the court, the only portion of the testimony of this witness that was stricken was that relating to the arrest of Welch and his dangerous character. This was clearly the opinion of the witness only and intended evidently as a caution or warning to the defendant, and is not a repetition of anything claimed to have been said by the deceased. The substance of what Henry Howard said to the defendant was later testified to by the defendant without objection and was not controverted. The ruling of the court was correct, and in any event the exclusion of this testimony could not have been prejudicial.
[3] III. The defendant acted as a peace officer upon the fair grounds during the fair by informal appointment and designation of the sheriff of Page county, who gave him a badge containing the inscription “Deputy Sheriff of Page County, Iowa,” which he wore upon the lapel of his coat, and who also gave him the gun with which Welch was shot. The defendant did not, however, qualify as a deputy sheriff, as required by law. As we understand the record, he was paid for his services by the fair association. The defendant, however, contended in the court below, and also contends upon this appeal, that, notwithstanding the fact that his appointment was informal and not in writing, he acted as a peace officer in good faith, with the knowledge and acquiescence of the officers of the fair association and the public, and that as such de facto peace officer he was authorized to make an arrest.
The court refused to permit the defendant, in answer to questions propounded to him by his counsel, to testify that he had previously been doing special police duty for the sheriff. This ruling of the court is assigned as error. Ordinarily evidence that a claimed de facto officer has been acting for a considerable period of time under some form of appointment is admissible in evidence, for the purpose of proving his status as such. Assuming, therefore, without deciding, that the defendant should have been permitted to testify that he had previously been employed by the sheriff to do special police duty, the ruling of the court, as will presently appear, was wholly without prejudice and does not present a ground for reversal.
[4] IV. The court gave the usual instructions as to the presumption of innocence and the burden of proof, and in the third paragraph of its charge defined the words “reasonable doubt.” In the next paragraph thereof, the jury was further instructed that the burden rested upon the state to establish by the evidence beyond a reasonable doubt, among other essentials, “that such killing was not justifiable on the defendant's part on the ground of self-defense.” In both the eighth and ninth instructions, the court again told the jury that the burden was upon the state to show by the evidence that the killing of Welch was not justifiable on the part of the defendant...
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