State v. Leahy, 47952

• Decision Date: 28 July 1952
• Docket Number: No. 47952,47952
• Citation: 54 N.W.2d 447,243 Iowa 959
• Parties: STATE v. LEAHY.
• Court: Iowa Supreme Court

Page 447

54 N.W.2d 447

243 Iowa 959

STATE v. LEAHY.

No. 47952.

Supreme Court of Iowa.

July 28, 1952.

Frank J. Margolin, George A. Gorder, of Sioux City, for appellant.

Robert L. Larson, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Wallace W. Huff, Woodbury County Atty., Sioux City, for appellee.

MULRONEY, Chief Justice.

Paul A. Leahy was indicted and tried for assault with intent to do great bodily injury. The jury returned a verdict of guilty and the court sentenced him to serve an indeterminate term not exceeding one year in the penitentiary and placed him on parole. Many of defendant's assignments of error claim the evidence was insufficient to sustain the verdict.

The defendant was a lieutenant of detectives on the Sioux City Police force. Sometime before 2:30 in the morning on January 6, 1950 defendant's wife was wounded by a bullet from defendant's revolver. The shooting occurred near the Peet Paint Company building in Sioux City. Officers Warnstadt and Schmidt investigated the shooting and they interviewed Mrs. Leahy in the hospital. After they left the hospital they located defendant in the vicinity where the shooting had occurred. Warnstadt asked Leahy to let him see his pistol but Leahy refused. The officers then told him to come with them to the police station; that the chief wanted to talk to him, and he said he would but first he wanted to go to the Chesterfield Club for a drink. He was in the Chesterfield Club for three or four minutes and then he came out and rode with the officers in the police car to the station. They arrived at the police station between 3 and 3:30 in the morning and went directly to the squad room to await the arrival of chief of detectives Gibbons. The chief arrived about 15 minutes later and he entered the squad room with Officer O'Keefe.

Officer Warnstadt testified Leahy was standing facing the door as Gibbons and O'Keefe entered the squad room: 'Leahy said 'hello' to them * * *. Gibbons was about a step in front of Leahy there and Leahy pulled out his pistol and pointed it at Gibbons. Gibbons knocked the gun down, stepped behind him, raised his arm, and I stepped in and took the pistol away from him; the defendant had it in his right hand, the barrel end of the gun was pointed toward Gibbons * * *'.

Officer Schmidt testified: 'I heard a commotion and the first thing I saw was when Harry Gibbons was holding Mr. Leahy's gun arm up and Warnstadt took it away from him; I did not see the pointing of the gun and didn't see it withdrawn from the holster; I saw Warnstadt take it out of Leahy's hands; I don't recall there was anything fell to the floor; I heard Mr. Leahy say, 'If you wanted it, why didn't you ask for it?' and Gibbons said something about how come he had it out in the first place, then Leahy said, 'I thought the communists were taking over the police station.' That was after Warnstadt had taken the weapon from him.'

Officer O'Keefe testified: 'I saw defendant about 3:30 in the morning * * *. I arrived with Chief Gibbons, who had telephoned me to pick him up; I entered the squad room first; I walked past officer Leahy; he spoke to me and I spoke to him; I heard scuffling behind me, turned, and saw Gibbons holding Leahy's right hand up with his right hand, I believe. Leahy had the gun in his hand. Officer Warnstadt reached up and grabbed the revolver; I did not hear any conversation between Gibbons and Leahy; I talked to Leahy right after this incident; he had been drinking and was a little argumentative; the gun can be discharged as fast as you can pull the trigger; there were three unexpended shells in it.'

The following is a portion of the testimony of Chief of Detectives Gibbons:

'I followed O'Keefe into the squad room, and nodded to the defendant. He had a topcoat on, I can't say whether he had a hat. I don't remember of addressing him. Just nodded at him.

'Q. As you walked diagonally across this squad room, what happened? A. I was just a little past Leahy when he pulled his revolver from his holster.

'Q. What did he do when he pulled his revolver? A. As soon as he pulled his revolver, I grabbed it, grabbed his gun arm, his gun hand, knocked it down and moved to my right around him and pushed his gun arm up with my right hand into the air. He was in a standing position. He might have--to draw his revolver he would have to crouch just a little, he would come up with it. * * * 'Q. Is that the position he was in, as you were just there? A. Yes, in firing position.

'Q. In firing position? A. That is what we call it, yes, sir.

'Q. Was the gun pointed at you butt first? A. No, sir.

'Q. Which end of the gun was pointed at you? A. Muzzle or barrel first.

'Q. Where was it pointed, at what part of your anatomy? A. About this, about my center.'

As to the conversation that occurred at that time Chief Gibbons testified:

'A. He said, 'You don't have to wrestle me around. If you wanted that gun, why didn't you ask for it. I didn't know who you were.'

'Q. What was that last? A. He said, 'I didn't know who you were.'

'Q. Then what did you say? A. I says, 'What did you pull it for in the first place.'

'Q. What did he say? A. He says, 'I thought the communists was taking over the police station. You never know what is going to happen, you know.' * * * I was standing in back of him when this was said, and this was after the gun had been taken away from him.'

Defendant's version of the incident was that he took his gun from the holster in order to hand it to the chief but he was grabbed by Gibbons before he could complete the act of surrendering his gun. He testified: 'Gibbons walked toward me; I had my holster and gun on me. Exhibit '8' is a gun holster which I had on me on my belt to the side. After Gibbons entered the room, I put my hands on the butt of the revolver. I started to pull it out of my holster. I may or may not, I guess I must have had the barrel clear out of my holster, otherwise he couldn't have got it clear up in the air. I had it in that position when he grabbed my arm, threw it up and they grabbed hold of me. The reason I was removing my gun from the holster was, well, that revolver had been involved in a shooting. I knew he would want to see it and, being my superior officer, he was the one to turn it over to. I had no chance to complete the giving of the revolver over to him, because I just had the gun in that position and they grabbed me. He grabbed me and threw my arm up. Warnstadt grabbed me. Nothing had been said between Gibbons and myself up to that time. My right hand was on the butt of the revolver. I had just taken it out of my holster. Like I say, I may have had the barrel out of the holster. My left hand was hanging loosely at my side. I was taken by surprise when they grabbed me. * * * When Gibbons took hold of me, he threw my arm up and pulled my left arm back; Warnstadt came over and took the gun out of my hand when it was up in the air like this. I did not struggle or put up any resistance. I said to Gibbons and Warnstadt, 'If you wanted the gun, why didn't you ask for it? My God! You would think the communists were taking over the police station.' I did not at any time point the gun at Harry Gibbons, nor point it in the direction of Harry Gibbons; I did not want to shoot Harry Gibbons, that is silly. * * * There wasn't any conversation that Gibbons asked why I pulled the gun and I replied I didn't know him. I recognized Gibbons and all the other officers. I never used the words 'You can never tell what might happen.' I did not have any ill feelings toward Harry Gibbons at that time, and as far as I know, he didn't, have any against me.'

I. The crime of assault with intent to inflict great bodily injury can be established by proof that defendant pointed a loaded gun at a person under circumstances constituting a threat to shoot. State v. Mitchell, 139 Iowa 455, 116 N.W. 808; 6 C.J.S., Assault and Battery, § 79b. There was evidence here by Officer Warnstadt and Chief Gibbons that defendant pointed the loaded gun at Gibbons. There was but little testimony showing circumstances that constituted a threat to shoot. There was no spoken threat. The remarks made by Leahy at the time were not threatening and they would not necessarily indicate an intention to shoot. Two other officers in the room did not see the defendant point the gun. Officer O'Keefe said defendant spoke to him and he spoke to defendant as he walked past him and the first thing he saw was when he turned around and saw Gibbons holding Leahy's right hand with the gun in it up in the air. Officer Schmidt was in the room and he did not say he had his back turned at the time the chief entered. He said he did not see the pointing of the gun. He states the first thing he saw was when the chief was holding defendant's arm up in the air. Even Officer Warnstadt testified that defendant gave the normal greeting of 'hello' to O'Keefe and the chief as they entered the squad room and walked toward him. Warnstadt said the chief was about a step in front of defendant when the latter pulled out his pistol and pointed it at him, while the chief testified he was a little past Leahy when the latter pulled his revolver from the holster. Chief Gibbons' testimony as to defendant's pointing the gun at him was practically nullified on his cross-examination. The defendant was not immediately charged with this crime. He was charged with intoxication and that charge was dismissed the next morning. The indictment is dated more than a year after the alleged assault. About all there is that might indicate an intention to shoot is the chief's testimony that defendant assumed a slight crouch or 'firing position' as he drew the gun. We think the question is close but viewing the evidence in the light most favorable to the state we hold it sufficient to support the verdict.

II. One assignment of error challenges the sufficiency of the indictment. The indictment charges that defendant ...