State v. Kneedy
Decision Date | 12 May 1942 |
Docket Number | 45649. |
Citation | 3 N.W.2d 611,232 Iowa 21 |
Parties | STATE v. KNEEDY. |
Court | Iowa Supreme Court |
White & Bruner, of Carroll, for appellant.
John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty Gen., and Lloyd Karr, Co. Atty., of Webster City, for appellee.
Defendant Herbert Kneedy, was indicted for assault with intent to murder one Cook. Upon the trial the court withdrew from the jury the crime charged in the indictment, but submitted the included offenses of assault with intent to inflict great bodily injury and assault and battery. The jury found Kneedy guilty of assault with intent to inflict great bodily injury on the theory that he aided and abetted Claude Van who struck the blow. In a separate trial, Van was convicted of the same offense and his conviction has been upheld by us. State v Van, 2 N.W.2d 748.
At the close of the state's testimony, appellant moved for a directed verdict because of insufficient evidence. The motion was overruled and was not renewed, although appellant offered evidence in his behalf. Following the verdict, appellant moved for a new trial, challenging the sufficiency of the evidence to sustain the verdict. This motion was overruled and judgment entered on the verdict. The overruling of the motion to direct is not before us. That motion was waived because not renewed and the case is before us as if no such motion had been made. Appellant cannot be heard to say that there was no evidence to submit to the jury. State v. Asbury, 172 Iowa 606, 615, 616, 154 N.W. 915, Ann.Cas.1918A, 856; State v. Bosworth, 170 Iowa 329, 331, 152 N.W. 581; Annotation 17 A.L.R. 910, 925, and citations. Nevertheless, the sufficiency of the evidence to support the verdict is properly reviewable because raised in the motion for new trial. State v. Tibbits, 207 Iowa 1033, 1035, 222 N.W. 423; State v. Dolson, 188 Iowa 629, 630, 176 N.W. 678; State v. Chambers, 179 Iowa 436, 440, 161 N.W. 470. This is the only question before us on this appeal. No other complaint is made.
On the afternoon and evening of January 4, 1941, Van and Kneedy were in Fitzgerald's pool hall and beer parlor in Webster City. Shortly before midnight, closing time, Van, Kneedy, and one Johnson, who was playing pool with Van, engaged in a heated argument in which loud talk and profanity were used. The argument started when Johnson discovered that five pool balls with which he and Van had been playing were in Kneedy's pocket. Van had placed them there. Johnson accused Kneedy of assisting Van to cheat in the pool game, which Kneedy testified was played for money. Fitzgerald and his employee, Powell, asked Van and Kneedy more than once to leave. They both defiantly refused to go. Thereupon Fitzgerald took Kneedy by the collar and pushed him out the front door. Kneedy admitted as a witness that he resisted by pushing back. Powell, with some assistance from Cook, put Van out.
As Van was being put out and when within 3 or 4 feet of Kneedy, he turned to Powell and Cook and threatened to get even with them. As soon as Van and Kneedy were outside, Fitzgerald held the door shut with his foot to prevent them from re-entering. There is evidence that Cook assisted in holding the door shut. It was a double door with large glass panels. Kneedy immediately began pushing the door open and succeeded in opening it a sufficient distance for Van to reach in and strike Cook, who fell to the floor unconscious. The blow was struck instantly as the door was opened. After Cook was struck, Fitzgerald and Powell went out the door. Both Van and Kneedy "came at" Fitzgerald with their fists doubled up, swinging at him. Kneedy had his fists drawn back ready to hit Powell, but Fitzgerald prevented this.
Since this appeal presents only the sufficiency of the evidence to sustain the verdict, we quote the following excerpts from the record:
Fitzgerald, proprietor of the poolroom, testified:
McCollough, a national guardsman who had lived in Webster City all his life, witnessed the affair. He testified:
Waggoner, a soldier in the army, also was an eyewitness. He testified:
Powell, the employee who escorted Van to the door, gave the following testimony:
Lee C. Croves gave the following incriminating testimony: '
Appellant's witness Briggs testified: "At the last game of pool, Kneedy and Van were drinking quite a little." Kneedy admitted as a witness he had been drinking.
Sam Calkins testified:
Appellant gave the following testimony before the grand jury: "We were put outside the door and the door was shut and I was resentful about being forcibly put out and wanted to get back in so I put my hands on the door that opens and whether or not the pressure of my hands on the door opened the door or whether it was opened from the inside, I do not know, but when the door was opened, Claude Van reached in and hit Cook and Cook fell to the floor." At the trial, appellant testified:
Principal witness for appellant, aside from himself, was Briggs, whose home was in Dubuque. Van's home was in Waterloo and Kneedy lived in Webster City. Van and Briggs had come to Webster City together on January 4. Briggs testified that he and Kneedy associated Kneedy testified: Briggs gave an entirely different version of the attack on Cook than any other witness including appellant himself. Briggs testified that Powell put Kneedy out and Fitzgerald merely gave some assistance. Briggs also said: ...
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