State v. Kelly

• Decision Date: 04 June 1888
• Citation: 74 Iowa 589,38 N.W. 503
• Parties: STATE v. KELLY.
• Court: Iowa Supreme Court

74 Iowa 589

38 N.W. 503

STATE

v.KELLY.

Supreme Court of Iowa.

June 4, 1888.

Appeal from district court, Lucas county; CHARLES D. LEGGETT, Judge.

Indictment of Margaret Kelly for murder. Trial by jury, and verdict and judgment for manslaughter. Defendant appeals.Mitchell & Penick, for appellant.

A. J. Baker, Atty. Gen., for the State.

ROTHROCK, J.

The defendant was jointly indicted with her husband, Thomas Kelly, for the murder of one Charles Archibald. Thomas Kelly was first tried. He was convicted, and is now confined in the penitentiary. The evidence shows conclusively that the deceased was brutally murdered by Thomas Kelly, and the question presented to the jury upon the trial of the defendant was whether she participated with her husband in the commission of the crime. The court gave the jury the following among other instructions: “The law presumes that the influence of a husband over his wife is such that she is not held criminally liable for unlawful acts done by her in his presence, unless there is evidence to rebut this presumption, and satisfy the jury that the wife in what she did was exercising a free volition, and was guilty of independent criminal action on her own part; and if you find from the evidence that the defendant, Margaret Kelly, was concerned in the commission of or did the criminal act charged in the indictment to have caused the death of Charles Archibald, or aided or abetted its commission, but that what she so did was done in the presence of her husband, the law presumes, if there is no evidence to the contrary, that she was coerced by her husband to do all such criminal acts as were done by her in his presence; and she cannot be found guilty of such acts by your verdict, unless you find from the evidence that she was exercising, in what she did, a free will to do or not to do, and an independent criminal action on her own part. But if you find from the evidence that she was so exercising a free will, and an independent criminal action, the mere presence of her husband at the time she did any criminal act will not protect her from its consequences. The law does not require a wife to become an informer against her husband, or to expose his crimes or infamies; and if you do not find from the evidence, when considered under the instructions of the court, that she was concerned in the commission of the criminal acts charged in the indictment, but you do find that after they were committed the defendant did acts tending to conceal the crime of her husband, or to divert suspicion from him, such acts would not render her guilty of his criminal acts. But you may consider evidence of acts done by the defendant after the killing of Charley Archibald, and tending towards such killing, or intending to divert suspicion from the defendant or her husband, in connection with the other evidence in the case, as bearing upon her guilt or innocence of the acts charged in the indictment.”

It appears from the evidence that the deceased was a feeble old man, who lived in a house alone; that he had...