State v. Johns

• Decision Date: 17 October 1911
• Parties: STATE v. JOHNS.
• Court: Iowa Supreme Court

152 Iowa 383

132 N.W. 832

STATE

v.JOHNS.

Supreme Court of Iowa.

Oct. 17, 1911.

Appeal from District Court, Appanoose County; D. M. Anderson, Judge.

Defendant was indicted for the crime of murder in the first degree. Upon trial he was convicted of manslaughter and from the judgment imposed he appeals. Affirmed.Howell & Elgin, for appellant.

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

DEEMER, J.

Defendant admitted on the witness stand, and his counsel admitted in the argument before us, that he, defendant, shot and killed the deceased, John Tharp, at or about the time charged in the indictment, but it is strenuously insisted that the killing was in self-defense. That issue was submitted to the jury, and the verdict, while negativing defendant's contention in this respect, is such as to acquit him of the crime of murder in either degree. Something like 11 points or propositions are relied upon for a reversal; but we need not consider each, for many are so fully covered by previous decisions as to be beyond the pale of reasonable discussion.

Defendant is the stepson of the deceased, and at the time of the killing was not quite 16 years of age. Until two or three weeks before the homicide, defendant had lived with his mother and stepfather, but, as was his custom, during the spring and summer season he had gone into the country to work, and had not lived with Tharp for some weeks prior to the shooting. The day before the fatal encounter he had come in from the country, and was visiting at the home of a Mrs. Bonnie Starr. Tharp had married defendant's mother in January of the year 1910, and the shooting occurred on April 23d of the same year. Defendant's father died some years prior to his mother's marriage to the deceased; and it appears that his mother either through her first husband or by her own efforts acquired the title to some property in the town of Moulton. This property she deeded to defendant and his sister some years before her marriage to Tharp. It seems that Tharp was dissatisfied with the conveyance, and that he was insisting, after his marriage to Mrs. Johns, that the property should be reconveyed to her. On Saturday evening, April 23, 1910, Mr. and Mrs. Tharp had gone to their home for the purpose of packing their household effects in order to move them to the residence of Tharp's father, where they were expecting to make their home. They remained there but a short time, and were returning to the home of the elder Tharp, when they met the defendant and his sister, Mrs. Starr, near a store building in the town of Moulton. Shortly after passing each other, Tharp called to defendant, saying, “Lem, wait a minute. Your mother wants to speak to you.” To this defendant responded saying, “I don't care to talk to my mother.” What occurred from this time down to the shooting is a matter of sharp dispute. Defendant's version of the matter is as follows: “I saw nothing more of Tharp until I saw him standing in the darkness at the side of Wood's store. I did not want to meet Tharp. We stopped at Wood's store. Bonnie went inside, but I didn't. I was outside there by the door, where the vestibule is. Wood's store was lighted up. It was close to 8 o'clock. I waited until my sister came out. Then we started around the corner towards home. You couldn't see any distance to recognize anybody. When we first came around the corner, I did not see anything of Tharp standing there. It was dark. It was between a snow and a sleet if I can remember right. It was cloudy. It was 50 or 60 feet from the corner I should judge when I came to John Tharp. When I came to John Tharp, I was walking. Mr. Tharp was standing there. We passed them. We passed I should judge 10 or 15 feet. Just before we passed, John Tharp changed his position. He was standing against the building, and he stepped out against the walk, facing the building, so that we had to pass between him and the building. As we went by, I spoke to my mother. Tharp says, ‘Stop, come back here.’ He said it like he was angry. From the tone of his voice it did not seem like he felt any better toward me than he had felt. I did not want any trouble with him. I obeyed him, and finally stopped. I says, ‘What do you want?’ Mr. Tharp said, ‘Your mother wants to talk to you.’ I finally stopped. He started towards me. There was no other witness there except my mother and sister and myself. I did not see any one down in the cellar. * * * When Mr. Tharp first got in reach of me, he grabbed me by the shoulder, and I couldn't turn round. Finally I turned around. I got loose. Then he grabbed me by the throat, and pushed me up against the brick building. He pressed me severe and hard. My head went up against the brick building. I didn't make any signs or speak any words while he had my head against the brick building, because he was choking me, and I couldn't speak. It felt like he was choking me, like he was shutting off my wind. It felt like if it kept on very long that he would take my life. I tried to get loose. I felt like he was larger and stronger than I was. When the shot came, he was still choking me against the side of the building. When he commenced choking me, he struck me. He says, ‘God damn you, I will fix you now.’ Right at that time he shoved his hand down quick toward his pocket. I saw the quick motion in a general way. As to whether he actually put his hand in his pocket I couldn't say. I thought he was going down into his pocket for something when he said, ‘God damn you. I will fix you.’ That was my conviction. When he said that, I understood my sister to say, ‘Don't shoot him with that.’ She mentioned John Tharp's name. She said, ‘John Tharp, don't you shoot him with that.’ That is what I thought she said. That made me think still further that he had some kind of a weapon that he was going to hurt me with. I was honest in that, and believed he was going to do something of that kind with the weapon. I believed it still more when I heard Bonnie make that remark. I saw the motion Bonnie made trying to protect me with her hands. About the time he said, ‘God damn you, I will fix you,’ I brought something out of my pocket, and shot it off. I did not point it at him or at any particular place. I thought it was necessary to protect myself. I thought my life was in danger. I did not know where I had hit him, or that I had hit him at all. I did not try to shoot twice. I did not have any thought of shooting even once any more than to protect myself. After the shot went off, his grip released. I didn't see him make any further effort to bring his arm up. After I got loose, I got away as quick as I could. I was anxious to get away from his presence. My mother did not say, ‘Don't shoot him any more.’ I did not hit Tharp at all. After he let loose, I left right off. I didn't see what motion he went through with my mother. I went west. I had not been in the habit of carrying a revolver. I had seen Tharp carrying a gun and have a gun in his pocket when he would come in and when he went out before these threats came up. I believed at the time we had this trouble that he was in the habit of carrying a gun. I believed he had a gun in his pocket from all that took place before. The revolver I took to have fixed was my brother-in-law's. I left it to be fixed at Mr. Starr's request. If I had thought that John Tharp had been waiting around there in the dark at the side of Wood's store, I would not have gone around that way. When Tharp approached me and commenced talking to me, I noticed he was drinking. I thought he had been drinking by the way he acted. I could detect the liquor on his breath. I had heard that he was quarrelsome while drinking. * * * A. He came up. He came up when I stopped there. When he choked me, he looked mad and heated from what I could see. I would not have taken out the gun and pulled the trigger but for the fact that I thought it was necessary to preserve my life. I had no reason to follow him and shoot him except to save my life when he approached me.”

The story was corroborated with some departures by defendant's sister, Mrs. Starr; but the mother, although an eyewitness, was not called by either side. Against this the state introduced a purported dying declaration made by Tharp, from which we quote the following: “Mr. Tharp said that he and his wife had been down to their little house where they had been living, packing up their goods preparatory to moving them over to his father's house, where he and his father had been living before; that they worked awhile, and got cold without any fire, and concluded they would go back home, and in doing so they went by way of town, and he said: We came up along the side of Wood's store, Elmer Woods Company's store, and met a man and a woman, and, just after we passed, I said, ‘Lem, wait a minute, your mother wants to speak to you,’ and Lem said, ‘I don't care to talk to my mother,’ and at that moment they turned facing each other, and Lem hit him and immediately shot him; that he himself didn't strike the boy or didn't touch him in any way. * * * His version was that he and his wife had been down to her house; that is, where they had been theretofore living. They were down to her house packing up preparatory to moving up to the old man Tharps. I am clear as to that. They had been down to her house packing preparatory to moving, and he said he got cold down there, and they thought they would go back home. He said he didn't have any fire. * * * He spoke to him, and said, ‘Lem________.’ They had just passed each other. At the time he hollered at Lem, Lem had already passed. In his dying statement, he says, ‘I didn't touch him.’ He said he never touched him. He said that after he stopped Lem, after Lem had already passed. In his dying statement he says, ‘I didn't touch him.’ He said he never touched him. He said that after he stopped Lem, after Lem had gotten by, that Lem...