State v. King

• Citation: 197 N.W. 981,198 Iowa 325
• Decision Date: 01 April 1924
• Docket Number: No. 34779.,34779.
• Parties: STATE v. KING.
• Court: United States State Supreme Court of Iowa

198 Iowa 325

197 N.W. 981

STATE

v.KING.

No. 34779.

Supreme Court of Iowa.

April 1, 1924.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

The defendant was indicted for the crime of murder in the first degree in the killing of Robert Murray. Upon a trial she was found guilty of murder in the second degree. From a judgment committing her to the reformatory at Rockwell City, she appeals. Affirmed.John J. Hess, of Council Bluffs, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and C. E. Swanson and Frank E. Northrop, both of Council Bluffs, for the State.

VERMILION, J.

It is earnestly insisted on behalf of the defendant that the evidence is insufficient to sustain the verdict. The state contends that it is shown the defendant either fired the fatal shot or was present aiding and abetting another in so doing.

That the deceased was shot and instantly killed while guarding a number of desperate and reckless men, who had been found under circumstances clearly pointing to their guilt of serious violations of law, cannot be doubted. Whether there is evidence that she actively participated in their bold attack and desperate efforts to escape from custody, either by herself taking part in the assault, or by aiding and abetting those who did, is a question that must be determined from relatively few facts and circumstances, in a conflict so sudden, so fierce, and where human life and personal safety were so lightly held that it bore more resemblance to open warfare than to anything usually to be anticipated in the peace-time effort to enforce the law. While the pivotal facts are not many and are established by but few witnesses, to get their proper setting requires a somewhat extended consideration of the larger general situation.

On October 14, 1921, about 2:30 p. m. a party, consisting of Knox, a federal prohibition officer, Lane, a police officer at Council Bluffs, and Morgan, Jones, and Murray, the deceased, special agents or detectives in the employ of railway companies, armed with a search warrant for intoxicating liquors, visited a house known as the Snyder place some four or five miles from Council Bluffs. The house is situated about a quarter of a mile from the main road, and is reached by an unfrequented lane. When they came to the house they found a man, a foreigner, variously referred to as the Dago or by the name of Joe or Brown, asleep in a disabled car not far from the house, and took him into custody. A portion of the party went to the back door and were met by a man, Tierney, with a .38 caliber revolver in his hand. He was disarmed and arrested. Then they went into the kitchen of the house, and there found the defendant, Eva King, and her husband. A like revolver was taken from King. In a front room Moore was found and another similar gun taken from him. Knox went upstairs, where Haley, known to Knox also by the names of Thompson and Thomas, met him with a drawn gun. This, a .45, was also taken. The five men found at the house were placed on a couch or cot and one or more chairs in what is spoken of as the living or front room of the house.

The house is nearly square and consists of four rooms downstairs. The living room is in the southwest corner. In the southeast corner is the dining room with an open archway between it and the living room. To the north of the living room is a bedroom, in the northwest corner of the house. In the northeast corner is the kitchen. There is a door between the living room and the bedroom and also between the dining room and the kitchen north of it. Between the kitchen and the bedroom an enclosed stairway leads to the upper floor. At the foot of the stairway toward the north, at the outside wall of the house, is a small hall, or areaway as it is called, with doors opposite each other opening into the kitchen on one side and the bedroom on the other. There is an outside door on the east side of the kitchen, referred to as the back door. A front door opens from the west side of the living room.

Jones testified that when the searching party approached the house, he went to the front, and that, in passing a window on the south side of the living room, and looking across the living room and through the open door into the bedroom, he saw the defendant sitting up in bed, and her husband in the act of getting out of bed; that the latter put on his trousers and socks, went into the living room and stood there looking at him through the window; that he looked out through the dining room and kitchen and then returned to the bed and passed something to the defendant sitting in the bed; that King's body was between him and the instrument, and he could not see what it was.

When the defendant and her husband were found in the kitchen, on the entrance of the party after reading the search warrant to Tierney at the door, she was not fully dressed. She returned to the bedroom and began dressing. In this she was interrupted by a search of the bedroom. Knox and Jones searched the bed and the defendant's pocket book or handbag, and found no weapons. They testified to no other search of the bedroom while the defendant testified they searched a commode and suit cases that were there. The defendant's clothing was not searched.

Lane was left in charge of the prisoners, Jones was sent to telephone for help, and the rest of the party searched the house. While the search was going on, another man came in through the back door; he was searched, some cartridges but no gun being found on him, and was seated with the others. This man is not clearly identified. One Bullis had rented the Snyder place under the name of Bennett. In the upstairs rooms a quantity of clothing, identified on the trial as having been recently stolen from stores in neighboring towns, was found and carried down.

The defendant, after the search of the bed, finished dressing. She came out in the living room where the prisoners were and combed her hair at a mirror, then returned to the bedroom and laid down. She called her husband and something was said about her being sick. King asked and obtained permission to go to her. He passed several times from the bedside to the dining room to wet a towel with ice water, which was put on her face, and then stood by the bed fanning her.

Knox and Morgan went outside, and Murray joined Lane in watching the men in the living room. Two of the guns taken from the prisoners had been given to Murray. There was some talking among the prisoners, but it is not shown what was said. There was some disturbance made by Tierney over a coat found in a downstairs closet that he claimed belonged to him. There is little, if any, dispute as to what had occurred up to this point. The surviving members of the searching party and the defendant are the only witnesses examined as to what had transpired, and, except as to the extent of the search made in the bedroom, and what Jones claimed to have seen through the window, the discrepancies in the testimony are only such as would be expected.

The only persons in the house at this time were Lane, Murray, the defendant, and the men under arrest. Lane's testimony as to what then occurred, summarized from the transcript, is as follows:

“I was standing with my right side towards the door that leads from the kitchen into the dining room; the door was north of me. I could see through it and see the door from the kitcheninto the areaway at the foot of the stairway. I was facing about southwest. Murray was in the front room facing about southeast. We were both facing the men on the couch. While I was in that position the first thing that occurred was that I was shot from the back, from the door that was partly open that leads from the kitchen into the bedroom and also the upstairs, through the door that leads from the kitchen into the dining room. The shot came from the stairway--the door that leads from the bedroom, from the kitchen into the bedroom, and also goes upstairs. I turned around a little bit, I was shot through the shoulder and arm. I turned around and the second shot struck me across here and cut me clear across the chest, and the third cut my watch chain off. I was back of the door that leads into the kitchen a little bit facing those fellows on the cot. He got me from the stairway, and the bullet struck me under the shoulder blade and went out through my shoulder and came out through the arm. A bullet went in there and came out there [indicating], and it cut me clear across the chest. I still have the mark. I had my watch chain in my pocket, and it shot the watch chain off. King fired those shots, I saw him fire two of them. They all came from the same place. The first shot was fired right from the door. That struck me in the back, and I turned around, and there were two more fired right quick, and I shot back and just at that time somebody opened fire from the front and shot at me from the front, and one of them creased me across here [indicating], and at the same time the shooting started at me the shooting started in the bedroom, and all the fellows that were on the cot rushed to the bedroom. That was immediately after the first shot was fired at me that the shooting started in the bedroom. When they shot at me from the front room I started to go out through--I met King face to face. I started to go through the kitchen--in the kitchen. I shot at him and ran through the back door, he followed out, and I think he shot one shot at me outside. He fell at the corner of the house. I turned around and shot on the outside. I think King fired four shots all together at me. None of the men were in the bedroom at the time King shot at me. Mrs. King was in the bedroom. I could not say who fired at me from the front room after King started shooting--it was one of the men. After I came out, and after King fell at the corner of the house, two men followed out shooting, and I went directly to the...