State v. Limerick
Decision Date | 24 July 1969 |
Docket Number | No. 53077,53077 |
Citation | 169 N.W.2d 538 |
Parties | STATE of Iowa, Appellee, v. Earl LIMERICK, Appellant. |
Court | Iowa Supreme Court |
Thomas L. Root, and Raymond E. Pogge, Council Bluffs, for appellant.
Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and John P. Churchman, Special Prosecutor, for appellee.
Defendant, Earl Limerick, was charged by indictment with the crime of murder. He pled not guilty, was tried by jury, convicted of second degree murder and sentenced to 30 years in prison. He appeals alleging errors in admission of evidence, failure to instruct the jury regarding improper remarks of the prosecutor and insufficient evidence to justify submission of the charges of first and second degree murder. We consider the errors in reverse order and affirm.
From about 7:00 a.m. September 26, 1967, defendant Limerick and a friend, Marvin Stockton, were sitting in the kitchen of Limerick's home drinking whiskey. Later in the morning decedent, William Cullen, who lived upstairs in the same house, came in the back door. Limerick told Cullen he should knock before entering and should use the front door. Cullen repied that he had lived there seven or eight years and didn't have to knock. He sat down at the table near a butcher knife and had several drinks.
As the three men sat at the table Limerick and Cullen continued to argue about Cullen's use of the back door without knocking. Limerick thought Cullen had been drinking before he came into the kitchen. A short while later Limerick told Cullen to go upstairs to his room. Cullen started to rise out of the chair with his hand on the butcher knife and Limerick shot him twice in the chest causing immediate death.
Defendant called the police. Part of Officer Anderson's testimony about his conversation with defendant included the following: * * *.'
Defendant produced the gun immediately after the officers arrived. Officer Anderson took the gun to the police car and put it on the seat where it remained unguarded for some 45 minutes. When turned over to the police the gun had four spent and three live shells in the chambers. The eighth chamber was empty.
Defendant said he had the gun in his pocket because he had loaned money on the gun and the owner was coming over that morning to redeem it. Two of the spent shells were due to test firing the gun the day before. Defendant also testified Cullen had made threats on defendant's life two or three times before this incident. Defendant's evidence showed Cullen had been convicted of first degree murder, had served 38 years in the penitentiary at Fort Madison and was a heavy drinker, moody and argumentative. Defendant said he was disturbed and frightened when Cullen started to raise the butcher knife and shot in self-defense.
I. Defendant argues:
Defendant does not raise failure to give the Miranda warnings as a ground for disregarding defendant's admissions made at the scene of the crime. We treat the officer's account of defendant's statements as admissible evidence. Limerick's statement that he warned Cullen not to come in the back door or he would shoot him, together with the circumstances of the shooting, supplied a sufficient basis for submission of deliberation and premeditation. The questions, (1) whether Limerick's first or second account of the fracas was correct, (2) permissible inferences arising from the use of a deadly weapon and (3) the effect of the argument between the two men, were for the trier of the facts.
In State v. Christie, 243 Iowa 1199, 1207, 53 N.W.2d 887, 54 N.W.2d 927, we quoted State v. Powell with approval: 'We cannot hold under these facts that it was the duty of the trial court to withdraw the charge of either first or second-degree murder. The State's brief quotes from State v. Powell, 237 Iowa 1227, 1238, 24 N.W.2d 769, 775, the following language we deem applicable here:
"The other elements of premeditation and deliberation are likewise provable by the facts and circumstances surrounding the homicide. We have said premeditation and deliberation need not exist for any particular length of time. State v. Fuller, 125 Iowa 212, 100 N.W. 1114; State v. McPherson, 114 Iowa 492, 87 N.W. 421; State v. Woodmansee, 212 Iowa 596, 233 N.W. 725; State v. Baker, 143 Iowa 224, 229, 230, 121 N.W. 1028, 1030. In the last-cited case we said:
' Basically defendant relied on self-defense and the jury found against him. The evidence of premeditation, present here, distinguishes this case from State v. Wilson, 234 Iowa 60, 93, 11 N.W.2d 737; State v. Leib, 198 Iowa 1315, 1321--1323, 201 N.W. 29; State v. Borwick, 193 Iowa 639, 643, 187 N.W. 460, where it was held error to instruct on the higher offenses.
As to malice, the record clearly shows use of a deadly weapon and an argument of some duration between Limerick and Cullen. The issue of malice was also for the jury. State v. Christie, supra; State v. Baratta, 242 Iowa 1308, 49 N.W.2d 866.
II. Defendant objects to the court's failure to instruct the jury as to improper remarks alleged to have been made by the county attorney in final summation. No court reporter's record of the arguments was made, and no bill of exceptions by the judge or by bystanders was filed. Sections 786.5, 786.6, Iowa Code, 1966. However the State does not raise sufficiency of the record as a defense to the assignment and we consider the error on the record made. Cf. State v. LaMar, 260 Iowa 957, 966, 151 N.W.2d 496.
At trial seven character witnesses had been called by defendant to testify to his good character. The exception preserved by defense counsel was: 'The prosecuting attorney stated that the character witnesses, namely, Mr. Katelman, Mr. Wickham,...
To continue reading
Request your trial-
State v. Grady
...have been wrought for unjustifiable purposes, and it must not be of sufficient moment that the exhibit will mislead. " State v. Limerick, 169 N.W.2d 538, 542 (Iowa). This opinion thoroughly analyzes our cases bearing on the extent of identification of solid objects required as a foundation ......
-
State v. Ash
...of them and a police property tag on both. These are items not susceptible to change or alteration and what we said in State v. Limerick, 169 N.W.2d 538, 541 (Iowa 1969) disposes of defendant's objection: 'We have consistently * * * held the evidence properly admitted as within the discreti......
-
State v. Mattingly, 55894
...elaborate to make it reasonably probable no tampering or substitution occurred. State v. Lunsford, supra, at 616--617; State v. Limerick, 169 N.W.2d 538, 542 (Iowa 1969). Although direct estimonial proof of each link in the chain is preferred, in exceptional cases the chain of custody found......
-
State v. Kroeplin
...the evidence, not its admissibility. This also applies here. We agree with the reasoning of the Iowa Supreme Court in State v. Limerick, 169 N.W.2d 538, 541 (Iowa 1969): "In passing on the admissibility of exhibits where a break in the chain of custody is shown, we have ordinarily held the ......