State v. Kirk
| Decision Date | 19 December 1914 |
| Docket Number | No. 30001.,30001. |
| Citation | 168 Iowa 244,150 N.W. 91 |
| Parties | STATE v. KIRK. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; R. P. Howell, Judge.
The defendant was indicted for murder in the first degree, and convicted of manslaughter. He appeals. Reversed and remanded.Wade, Dutcher & Davis and O. A. Byington, all of Iowa City, for appellant.
Geo. Cosson, Atty. Gen., Wiley S. Rankin, Special Council, of Des Moines, and W. R. Hart and C. S. Ranck, both of Iowa City, for appellee.
The defendant shot and killed his wife, Frances E. Kirk, September 6, 1913, and was put on trial the 29th day of the same month. He justified by pleading self-defense. They had lived in Iowa City about 1 1/2 years, and were engaged in selling Indian medicine remedies; he being of Indian-Portugese extraction, and she a French-Canadian. He was 45 years of age, and she some years older. She had begun an action for divorce, and had procured a writ of injunction restraining him from visiting the premises previously constituting their home. Negotiations for the adjustment of her claim for alimony were pending, though she had declined an offer made by him, and his attorneys had advised him to see his wife and try to reach an agreement. In the evening of September 6, 1914, he had been sitting on his porch without coat and with shoes untied, and at about 7:30 o'clock took a revolver he had purchased 3 months before, from a dresser, and walked across the street to Kostal's store, ostensibly to buy a cigar. His wife, who was sitting on the store porch, went in, and a discussion between them followed concerning some rent she had collected and the adjustment of her claim of alimony. Evidence that he told her that she had lied in saying she had left the rent with her attorney was undisputed, and the character of their controversy may be inferred from the fact that Kostal requested them to leave the premises, and accompanied her about 100 feet on her way home, some 500 feet distant, while Kostal's wife advised her to remain. The defendant went the same way, though out in the street or on the opposite side. She appears to have walked rapidly, and when across an intervening bridge about 200 long, according to Nettie Eagan, then 13 years old, dared defendant, who was on the other side, over, to which he responded, “Never mind, I will get you yet.” The defendant testified that he told her he wanted to talk with her this evening, and that they there arranged to meet at her gate. After they were there a few minutes, several revolver shots were heard; some witnesses saying four, others five, and still others as high as seven. When found, she was lying on the ground dead, with four wounds, two of which were necessarily fatal. Two bullets entered the left shoulder, one the neck, and the other the fleshy part of the left arm. Powder marks were on her clothes and person. A nickle-plated revolver with three empty and three loaded shells was lying on or near her left hand. It was dark, and there was no eyewitness other than the defendant. All the witnesses agree that the first three shots were fired in rapid succession, and that then there was a pause, and thereafter one, two, three, or four shots were fired; the greater number of them fixing them as two after the pause.
[1] The defendant testified that, after a few words had passed, he had said:
“
Nettie Eagan testified to seeing him walk over to the gateway, place his left hand on his wife's right shoulder, his right hand by his side, and that her hands appeared to be down, and that within three minutes she heard three or four shots. The defendant was known as Dr. Deerfoot, though not a practicing physician, had traveled over the country selling medicines for others or himself since attaining maturity, was a good shot, and had married the deceased 18 or 19 years previous, she being his second wife. She had been a snake charmer in a circus, was somewhat addicted to the use of intoxicating liquors, of violent temper, was jealous of him and had threatened his life. The evidence was in conflict as to whether she was peaceably disposed. They were of the same height. She weighed 160 or 170 pounds, while his weight was only 130. It is impractical to set out all the details. Enough of them have been mentioned to indicate that the issue of self-defense was for the jury. The theory of appellant is that his wife fired three times, and thereupon he discharged the four bullets into her person. But if she discharged the revolver, none of the bullets hit him, and this he may have known before he fired. She was within a few feet of him, as the powder on her dress proved, and he admitted she was within seven feet. An expert was of the opinion that his revolver must have been within six inches of her shoulder. In these circumstances, was it necessary for him to take her life in order to protect his own? There was a pause after the first three shots. If she had fired these, did she then quit, and, if so, might he not then have seized her revolver, rather than have shot and killed her? Again, some witnesses testified that, though in a situation to hear, they heard but four shots. If so, the defendant must have fired them. The evidence tended to show that she screamed immediately after the first three shots. If so, was this because of being wounded, or owing to fright when defendant drew his revolver? If but four shots were fired, the infliction of the wounds must have occasioned the scream. Moreover, the defendant might have been found to have armed himself with his revolver and to have gone over to the store for the purpose of interviewing the deceased and bringing on trouble, and to have followed her home with that purpose as well, and to talk with her concerning the alimony to be allowed her in the divorce suit. So that, under the evidence, the jury might have concluded that the deceased did not fire at defendant, or that, if she did fire, he could have disarmed her, and thereby have protected himself without taking her life, or that, because of being the assailant, he could not avail himself of the plea of self-defense. What we have seen indicates with sufficient clearness that the finding that defendant did not act in the reasonable apprehension of imminent peril to his life or person has such support in the record as to preclude any interference by this court.
[2][3] II. The clothes worn by the deceased were introduced in evidence over objection that they were not shown to have been in substantially the same condition as at the time of the shooting. With reference thereto, the coroner testified that he identified them without question, and he was handed the waist, and explained how it was worn, and pointed out where the bullets passed through it.
The corset was then handed to the witness and identified as that taken off the body of the deceased. All the clothes were then introduced in evidence over objection. None other than the jacket were shown to be in the same condition as at the time of shooting.
The witness was asked:
It is manifest that there was error in receiving the clothes other than the jacket without any showing that they were in substantially the same condition as when removed from the body of the deceased. However, as the killing was admitted, the only bearing of this testimony was with respect to the powder marks as tending to show how near the revolver must have been at the time of being discharged, and, as will be observed, these marks were shown to have been the same as when the coroner took charge of the body; so that, while there was error, it was entirely without prejudice.
[4][5] III. Wesley Kubichek was called as an expert to testify how recently the revolver found by the body of the deceased had been discharged. In qualifying, he testified that his fathe...
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