State v. Mahan

• Decision Date: 17 March 1884
• Citation: 20 N.W. 449,68 Iowa 304
• Parties: THE STATE v. MAHAN
• Court: Iowa Supreme Court

20 N.W. 449

68 Iowa 304

THE STATE v. MAHAN

Supreme Court of Iowa, Council Bluffs

March 17, 1884

Appeal from Clayton District Court.

THE defendant was accused of the crime of murder in the first degree committed, as was charged in this indictment, in the killing of one Dennis Murphy. He was convicted of manslaughter, and sentenced to a term of imprisonment in the penitentiary, and from this judgment he appeals.

AFFIRMED.

Garber & Corlett and Murdock & Larkin and Noble & Updegraff, for appellant.

Smith McPherson, Attorney-general, for the State.

REED J., SEEVERS, J.

OPINION

REED, J.

The killing of Dennis Murphy occurred on the second of October 1881. He and the defendant met on the evening of that day, in a saloon, and while there became involved in a quarrel in which Murphy was undoubtedly the aggressor. He used very insulting and offensive language towards defendant, and in the course of the quarrel threw a beer glass at him. The interference of the saloon-keeper and others, however, prevented any actual conflict between the parties in the saloon, and, after the quarrel was ended, Murphy went out of the house, and sat down near the door. Soon afterwards defendant left the saloon with the intention of going to his home. He had with him a cross-cut saw, about four feet in length, which he carried on his shoulder. When he stepped out of the saloon he remarked to some of the by-standers, (referring, doubtless, to what had occurred in the saloon,) that the excitement had not been as great as they had anticipated. At this, Murphy arose and said it could be much greater if he wanted it to be, and that if he was a man he would stop and have it out. Defendant replied to this that he had heard enough from him, and walked away, but Murphy followed him, using abusive language towards him and telling him that if he was not a coward he would stop and fight it out. When defendant had gone about fifty feet from the saloon he stopped and, turning towards Murphy, asked him if he wanted a fuss, to which he answered, yes, that he wanted to fight it out. At this time the parties were but a few feet apart. Murphy had a stone in his hand, and defendant told him to drop it. But he made a motion with his hand as if about to strike defendant, and defendant immediately struck him with the saw. The blow took effect in Murphy's neck, and inflicted a wound from which he died within an hour. There is but little controversy as to the facts of the transaction, and they are narrated above substantially as they were related by defendant on the trial.

I. The first position urged by defendant's counsel is that, upon the evidence, the jury should have acquitted him on the ground that in striking the fatal blow he acted in the reasonable and necessary defense of his own person from injury from the assault by Murphy.

We think, however, that we would not be warranted in disturbing the judgment of the district court on this ground. The jury may well have found from the evidence that defendant was not in such danger as to justify him in resorting to the use of a dangerous weapon, or in taking the life of his assailant. The law of self-defense is well-settled in this state. The killing of an assailant is justified on this ground only when it is, or reasonably appears to be, the only means of saving the life of the one assaulted, or of preventing some great injury to his person. If the danger which seems to threaten the person assaulted can be avoided or prevented by any other reasonable means within his power, he is not justified in taking the life of his assailant. The State v. Benham, 23 Iowa 154; The State v. Neeley, 20 Iowa 108.

The law on this subject was correctly stated to the jury in the instructions of the court, and they may well have found from the evidence that defendant could have avoided all danger from Murphy's assault by retiring from the conflict, or that by appealing to the by-standers (who were friendly to him) he might have secured protection therefrom.

II. The court instructed the jury that they could not convict the defendant of any offense lower than manslaughter, and that they should either convict him of murder or manslaughter, or acquit him. The giving of these instructions is assigned as error. It is certainly true that a number of offenses lower than manslaughter are included in the indictment, and under our statute, Code, § 4465, if the evidence failed to establish that defendant was guilty of either murder or manslaughter, but did show that he was guilty of one of the lower offenses included in the indictment, he might have been convicted of such lower offense. It was held in the State v. Vinsant, 49 Iowa 241, and The State v. Peters, 56 Iowa 263, that the district court erred in not instructing the jury as to the offenses lower than those charged in express terms in the indictments, which were included in the charges, and the judgments were reversed on that ground. The ruling in both cases is based on the ground, however, that, while under the evidence there might have been some doubt as to whether the defendant was guilty of the offense of which he was convicted, it tended strongly to show that he was guilty of one of the lower offenses, and hence that he had the right to have the jury pass on the question whether he was not guilty of such offense rather than of the higher one of which he was convicted. And whether it is necessary or proper for the court, in any case, to instruct the jury as to the offenses lower than that charged in express terms in the indictment, which are included in it, must depend on the facts of the case as they are shown by the evidence. If the evidence in a case should show beyond all question that the crime of murder had been committed, and the only controverted question of fact should be whether the accused was the guilty party, it certainly would not be proper for the court in that case to instruct the jury as to the offenses lower than murder, which were included in the indictment. In the case before us, as we have seen, it was admitted by the defendant that he had by violence inflicted on the person of Murphy a wound which caused his death, but his claim was that his act in inflicting such injury was not unlawful. The question in controversy was as to whether he struck the fatal blow unlawfully, and, as it was conceded that death resulted in consequence of the blow, it would follow necessarily that if the blow was unlawful he was criminally responsible for the death which resulted from it. On the conceded facts, then, he was either criminally responsible for the death of Murphy, or he was not guilty of any crime. There was no possible theory of the evidence upon which a verdict of guilty of any of the offenses lower than manslaughter, which are included in the indictment, could have been found. The instructions of the court on this question are, therefore, correct.

III. In an instruction on the right of self-defense, in which the jury are told that defendant had the right to take the life of Murphy in resisting the assault made by...