State v. Johnson
| Decision Date | 15 June 1937 |
| Docket Number | 43597. |
| Citation | 274 N.W. 41,223 Iowa 962 |
| Parties | STATE v. JOHNSON. |
| Court | Iowa Supreme Court |
Appeal from District Court, Page County; Grover W. Brown, Judge.
The defendant, Bert Johnson, was indicted for the crime of murder in the first degree. Upon the trial of the case he was found guilty of manslaughter, and he appeals.
Affirmed.
Where court instructed that accused could not be found guilty if killing was in lawful self-defense under rules thereinafter given, followed by instruction that accused had same right to do everything in protection of his mother that he could lawfully do in protection of himself, failure of instructions to expressly refer to accused's right to kill in defense of his mother was not ground for reversal.
Earl R. Ferguson, of Shenandoah, and H. S. Stephens, of Clarinda for appellant.
John H Mitchell, Atty. Gen., Willis A. Glasgow, Co. Atty., of Clarinda, and Buell McCash, Sp. Asst. Atty. Gen., for the State.
The defendant, Bert Johnson, was indicted for the crime of first-degree murder committed on his father, Elmer Johnson on the 31st day of December, 1935. Briefly stated, the facts connected with the crime charged are substantially as follows: The deceased, Elmer Johnson, lived with his wife, Frieda Johnson, and his son, Bert Johnson, on a farm operated by him and his son, about eight or nine miles west of Clarinda, in Page county. This farm was situated something more than a mile south of paved Highway No. 3, which runs westward from Clarinda to Shenandoah, and between the paved highway and the Johnson farm there was an ordinary dirt road. On December 31, 1935, the deceased and his son Bert Johnson, left their home in a Ford automobile, with a stock trailer attached, and proceeded to Maryville, Mo., for the purpose of attending a stock sale. No purchase was made at the sale and toward evening they started to return to their home. Their route home was by way of Clarinda, where they stopped and visited a few minutes with another son of Elmer Johnson and then spent some time in two different beer taverns. Some time between 7 and 8 o'clock in the evening, the Johnsons started westward from Clarinda on their way home, traveling westward on paved Highway No. 3 until they reached the dirt road leading from the pavement to their home. They turned southward on this road and had proceeded between 400 and 500 feet when they came to a hill which they were not able to ascend, because it had rained some during the day and the dirt road was slippery. After the son, Bert Johnson, who had been driving, had tried unsuccessfully to get up the hill, he got out of the automobile and tried to push, while his father took the steering wheel. Instead of being able to get up the hill, the automobile and trailer slipped around until they went off the traveled part of the road into a shallow ditch on the west side thereof. During this time Elmer Johnson began to curse his son, called him vile names, said it was his fault, and said he would kill him. The son then said that he would go home and get a team and pull the automobile and trailer out of the ditch. Bert Johnson proceeded home and arrived there some time between 8 and 9 o'clock. He harnessed up a team and hitched it to a low wagon, with flat-rimmed steel wheels, on which there was a box with sideboards and front endgate but no rear endgate. While at home he got a flashlight off a table and took a double-barreled shotgun and three shells from the pantry. While in the house he told his mother that his father had another one of his spells, that the automobile and trailer were in the ditch, and that he was taking the team and wagon to go to the place where they were and try to pull them out, and his mother said that she would accompany him. While at home Bert Johnson put two of the shells that he had taken from the pantry in the shotgun and put the other shell in the right pocket of his overalls. He procured a log chain from a granary, and he and his mother, both standing up in the wagon in which there was no seat, then proceeded toward the place where the automobile and trailer were stalled in the ditch.
While Bert Johnson was on his trip home to get the team and wagon, his father, Elmer Johnson, went to the home of a man named Henry Lawson, who lived on the south side of the paved highway about 40 rods east of its intersection with the dirt road leading to the Johnson home, and asked Mr. Lawson if he and his son would help get the car and trailer out of the ditch. Lawson and his son went with Elmer Johnson to the place where the car and trailer were in the ditch, and Eugene Lawson, the son, found that the ground cable to the battery of the car had become loose and he tried to fix it. He was able, however, to move the car only a few feet and was not able to get either the car or the trailer out of the ditch. About this time, the wagon in which Bert Johnson and his mother were riding approached from the south. As they came toward the place where the car and trailer were located, they did not stop, but proceeded northward to the intersection of the road with the paved highway, in order to make the turn, so that they would be facing southward toward their home. As they went past the place where the automobile and the trailer were in the ditch, Elmer Johnson had an automobile crank in his hand and in a loud voice he threatened to kill his son, Bert, at the same time calling him a vile name. As he did so, he approached the wagon from the west or left side of the road, in an apparent attempt to get into it, but slipped and fell in the mud. Mr. Lawson and his son remonstrated with Elmer Johnson and then proceeded to follow the wagon toward the paved highway on their way home. After the wagon had been turned around at or near the intersection of the dirt road with the paved highway, it proceeded southward toward the place where the car and trailer were in the ditch. As it approached this place, Elmer Johnson came toward it with the automobile crank in his hand, called the son vile names, and again threatened to kill him. Omitting, at this point, the details shown by the evidence, we confine ourselves to the statement that, while the wagon, in which Bert and his mother were standing up, was passing the place where the automobile and trailer were in the ditch, Bert Johnson discharged the two shells that were in the shotgun into the body of his father, then placed the other shell in the gun and discharged it into the head of his father, who was then lying down or in a squatting position on the road. The wagon was then driven a short distance southward to the top of the hill, where it was again turned around toward the north, and, with Bert and his mother standing up in it, proceeded northward past the place where Elmer Johnson was lying on the left or west side of the road, onto the paved highway, and east thereon to the Lawson home, where Bert Johnson told Mr. Lawson what had happened. Mr. Lawson immediately called the sheriff, who arrived at the Lawson home a short time thereafter, accompanied by two other men, Hoskins and Gray. They were told what happened, and the sheriff and his two companions and Bert Johnson proceeded to the place where the automobile and trailer were stalled. They there found the dead body of Elmer Johnson lying at the west side of the road, his head toward the northwest and his feet toward the southeast. While waiting in the sheriff's car for the coroner to arrive, Bert Johnson told the sheriff, in the presence of Hoskins and Gray, how the shooting occurred.
Bert Johnson was arrested and taken to Clarinda, and later that same night he signed a written statement, in the presence of the sheriff, the county attorney, Max Gray and J. E. Davidson. He was thereafter indicted and, upon the trial of the case, he was found guilty of the crime of manslaughter. A motion for new trial and exceptions to instructions were filed by the defendant and overruled by the court, and judgment was entered on the verdict rendered. From this judgment, and from all rulings of the trial court, the defendant appealed.
The record in this case is voluminous, and the briefs and arguments of both appellant and appellee are quite extensive. Appellant sets out seven separate allegations of error upon which he relies for a reversal. It is impossible to discuss in detail the conflicting contentions of appellant and appellee in reference to these alleged errors, and we necessarily confine our opinion to a consideration of the essential propositions involved.
Appellant's first alleged ground of error is that the court erred in overruling the first ground of defendant's motion for a directed verdict, made at the close of the State's evidence, and renewed at the close of all the evidence. The portion of said motion which is here involved is as follows: " The evidence utterly fails to meet the burden required by law of the State to negative the essential and necessary allegations of an indictment of this character charging this crime of self-defense, but on the other hand the evidence as produced in this case affirmatively shows the act was done in self-defense, anyway it is not negatived as required by law."
We confess that we have some difficulty in determining just what is meant by this ground of the motion, but we think that its meaning may be gathered from the brief points and argument in which it is contended that: " If the State's case fails to show that the alleged slaying was not in self-defense, or in defense of another, the accused is entitled to a directed verdict of acquittal."
Conceding the rule to be, as claimed by appellant, that the burden was on the State to prove beyond a reasonable doubt, not only that the death of the decedent was caused...
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