State v. Leeper, 35812.

• Decision Date: 19 November 1924
• Docket Number: No. 35812.,35812.
• Citation: 199 Iowa 432,200 N.W. 732
• Parties: STATE v. LEEPER.
• Court: Iowa Supreme Court

199 Iowa 432

200 N.W. 732

STATE

v.LEEPER.

No. 35812.

Supreme Court of Iowa.

Nov. 19, 1924.

Appeal from District Court, Johnson County; Ralph Otto, Judge.

Defendant was jointly indicted with two others charged with murder in the first degree. Upon a separate trial a verdict of guilty was returned, fixing his punishment at life imprisonment. From a judgment upon the verdict he appeals. Reversed and remanded.W. M. Davis, of Iowa City, and J. M. Parsons, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., and Edw. L. O'Connor, Co. Atty., and Henry G. Walker, Asst. Co. Atty., both of Iowa City, for the State.

VERMILION, J.

The indictment charges the appellant and two others, Mima Wertz and Beryl Leeper, with murder in the first degree, committed by shooting Roy Wertz with a pistol. The defendant Mima Wertz was the wife of the deceased, and the defendant Beryl Leeper is the daughter of Roy and Mima Wertz, and the wife of appellant. Appellant was separately tried.

A demurrer to the indictment raised the questions: (1) That the act charged could be committed by but one person; (2) that the indictment failed to distinguish between the principal and the accessories; and (3) that section 5299 of the Code of 1897 is unconstitutional. That section is as follows:

“The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried and punished as principals.”

[1] The constitutionality of this section has been recently upheld by this court as against the attack here made upon it. State v. Burch, 200 N. W. 442. There is no occasion to add anything to what is there said.

Aside from the constitutional question, the sufficiency of the indictment, and the propriety and correctness of instructions permitting the jury to find the defendant guilty, if he aided and abetted the commission of the offense, cannot be doubted. The uniform holdings of this court have been against the contention of the appellant on these questions.

[2][3][4] Two or more persons may be indicted for a crime that, from its nature, can only be committed by one person. State v. Comstock, 46 Iowa, 265;State v. Berger, 121 Iowa, 581, 96 N. W. 1094;State v. McAninch, 172 Iowa, 96, 154 N. W. 399, Ann. Cas. 1918A, 559;State v. Farris, 189 Iowa, 505, 178 N. W. 361. Where the indictment charges the defendant as a principal, he may be convicted on proof that he aided and abetted the commission of the crime. Bonsell v. U. S., 1 G. Green, 111; State v. Brown, 25 Iowa, 561;State v. Hessian, 58 Iowa, 68, 12 N. W. 77;State v. Pugsley, 75 Iowa, 742, 38 N. W. 498;State v. Munchrath, 78 Iowa, 268, 274, 43 N. W. 211; State v. Berger, supra; State v. Meyer, 180 Iowa, 210, 163 N. W. 244;State v. McCray, 189 Iowa, 1239, 179 N. W. 627; State v. Farris, supra; State v. Weeks, 193 Iowa, 1024, 188 N. W. 591;State v. Burch, 195 Iowa, 427, 192 N. W. 287, 31 A. L. R. 198;State v. King (Iowa) 197 N. W. 981. Where two or more are jointly indicted, and the evidence shows they were acting together in the commission of the crime, the state is not bound to show which one actually committed the act. State v. Zeibart, 40 Iowa, 169;State v. McCray, 189 Iowa, 1239, 179 N. W. 627.

The demurrer to the indictment was properly overruled; there was no variance between the indictment and the proof; and it was not error to instruct the jury that the defendant might be found guilty, if he fired the fatal shot, or if he aided and abetted one of those jointly indicted with him in the commission of the crime.

Certain facts are not in dispute. Roy Wertz, the deceased, and Mima Wertz, a codefendant with appellant, had been married and divorced and remarried again. Beryl Leeper, the other defendant in the indictment, their daughter, was born during the first marriage. After the divorce, Wertz had married Agnes Kuntz, who had died, leaving him some property, before the second marriage of deceased and Mima Wertz. The family, consisting of Wertz, his wife, and daughter, lived, at the time of the homicide, in Iowa City, in a house that formed a part of the property so derived. They kept roomers, some students, and others who lived in the upper story. Wertz had no particular occupation, but spent much of his time at various clubs, and was addicted to drink. The appellant had been a student at the state University, and in September before the killing he and the daughter Beryl had been married in Chicago. On their return to Iowa City they continued to live for much of the time as before, although he was at the Wertz house frequently, and spent some nights there. It seems to be a matter of controversy to what extent this marriage was kept secret. Mrs. Wertz knew of and approved it. There is some dispute as to whether deceased knew of the marriage. But it is undisputed that in July preceding the killing Wertz had insisted that the marriage take place at once, and had caused the arrest of the appellant. The latter was detainedin custody only a short time, and no charge was filed against him.

For some days preceding the killing, which occurred on December 27, 1922, Mrs. Wertz had been visiting at Dolliver, Iowa; and the students rooming at the house were away. There were living in the house at that time, in addition to the family, Mr. and Mrs. Steinmetz, and a Miss Moorehead. On the morning of the day preceding the tragedy Wertz found the appellant and Beryl occupying a bed in the house, and ordered them to leave. They went to Cedar Rapids, and from there telephoned Mrs. Wertz at Dolliver. She came to Cedar Rapids that night, and the three spent the night at a hotel. On that night the deceased entertained a party of men in the dining room of the home, drinking and gambling. The party broke up, and the guests departed about 9:30 on the morning of December 27th. Appellant, his wife, and mother–in–law returned to Iowa City on that morning on an interurban car, arriving there at 10:10 o'clock. They went together to the Wertz home. Between 10 and 10:30 o'clock Dr. Bennett received a telephone call from Beryl to come to the house. He went to the Wertz home in response to the call, arriving there in the neighborhood of 10:30 a. m. The appellant, his wife Beryl, and Mrs. Wertz were there; and Roy Wertz, dressed in a nightshirt, was lying on the floor in the kitchen, unconscious and bleeding, and with two bullet wounds in his head. One bullet had entered about two inches in front of the ear, and came out about an inch back of the ear, passing only through fleshy tissue; the other entered in the vicinity of the temple, and came out at the back of the head, passing through the brain and causing a fracture of the skull. The bullets were fired from an automatic pistol belonging to Wertz. It was found on the premises after the shooting. Wertz died shortly after noon of the same day.

Briefly stated, the contention of the appellant is that when he and his codefendants entered the house Wertz was in bed; that the appellant went to the basement to attend to the furnace; that Wertz first made an unprovoked attack upon Mrs. Wertz; that the daughter interfered, and he attacked her; that he threatened to kill them both, and was reaching for a gun standing in the corner of the kitchen when Mrs. Wertz obtained the pistol from the drawer of a washstand in the kitchen and shot him; that he fell and remained in the southeast corner of the kitchen until removed to a bed by Dr. Bennett and appellant. Mrs. Wertz and Beryl both testified that Wertz met his death substantially in this way. The appellant testified that he heard shots while in the basement, and on coming up stairs into the kitchen found the deceased lying in the southeast corner of the room.

The state produced no witnesses who saw the killing. Its case is based entirely on circumstantial evidence. Its contention is that the position of Wertz when Dr. Bennett arrived, the location and character of the wounds, the location of certain marks upon the walls, claimed to have been made by the bullets after passing through the head of Wertz, the location of blood stains on the floor, and objects in the room, show that Wertz was not shot in the manner or under the circumstances claimed by appellant; but that, after receiving a flesh wound in the face while standing, the fatal shot was fired when he was in a sitting posture on the floor, at a point some distance from where he was when the first wound was inflicted, and at some interval of time thereafter; and that the shots were fired from the vicinity of the door leading from the kitchen to the basement. Certain statements alleged to have been made by appellant, and by Beryl in his presence, or as a part of the res gestæ, are relied upon to support this view. There was testimony tending to show a state of ill feeling on the part of appellant toward Wertz; that he had threatened “to get even with him” after his arrest on complaint of Wertz. One witness, Barth, testified in substance that appellant told him that he had a chance to make $20,000 by marrying Beryl and killing Wertz; that he could kill him in different ways, by putting poison in his liquor, or taking him up the river; that he was afraid some of his friends might get the poison, and that if he took him up the river he would be missed in a short time; that he could get a gun with a silencer on it; that Mrs. Wertz would take the whole blame for this; that “the girl and them had talked this over.” Another witness, Johnson, testified that appellant told him there were different ways he might “knock him (Wertz) off,” and Mrs. Wertz would take the blame for it as self–defense under one or two of these ways; that one way was to use a hypodermic needle and inject air in an artery or vein, and another was to use a silencer, and shoot him when h...