State v. Mart

Decision Date16 October 1945
Docket Number46694.
Citation20 N.W.2d 63,237 Iowa 181
PartiesSTATE v. MART.
CourtIowa Supreme Court

Rehearing Denied Jan. 11, 1946.

Walter F. Maley and Volney Diltz, both of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty Gen and F. E. Van Alstine, Co. Atty., of Pocahontas, for appellee.

MILLER, Chief Justice.

The altercation, which resulted in the filing of a county attorney's information charging defendant with the crime of assault with intent to commit murder, occurred at defendant's home on Sunday evening, October 29, 1944. It grew out of a dispute over the possession and use of a tractor plow, owned by Lyle Nieman, which had been loaned by Nieman to Harold Loomis. Defendant had had negotiations with Nieman for the purchase of the plow. Earlier in the afternoon defendant had gone to the Loomis farm and, in Loomis' absence, had removed the plow to his farm. That evening Loomis and Nieman called at defendant's home to talk things over. Nieman stated to defendant that the sale had not been completed and defendant contended that it had. Defendant and Loomis became engaged in a fist fight. Defendant got Loomis down and bit Loomis' hand. Defendant and Loomis got up and Loomis undertook to leave the place. He found the gate locked and attempted to climb over the yard fence. While Loomis was thus engaged defendant stabbed him in the back with a knife.

Loomis testified in part as follows: 'I just got up and stood back there as Mr. Mart was down on his haunches on the porch plumb helpless. I stood there waiting until he got up. He started shuffling in his pockets with his hands and I said to Lyle, 'Look out he is drawing a knife'. I started for the gate and Mart was cursing me all the way as I was going to the gate, he said, 'Come on back you yellow _____ and fight like a man'. I just kept on going. I couldn't get the gate open so I started over the house yard fence and was about half way over when I was stabbed in the back. After I got over the fence I walked to the road and called for Lyle. I knew I was cut in the back because I felt back there with my hand.'

Neiman testified in part as follows: 'Mr. Loomis was to the south of the porch and Mr. Mart was between me and Mr Loomis. Then Mr. Mart says, 'So that is the way you want it, Huh?', and he reached his hand in his pocket and pulled it out but that is all I seen, and he took after Mr. Loomis and Loomis started running toward the gate south. I was still up on the porch and I seen Mr. Loomis try to get over the fence and seen Mr. Mart hit him as he was going over the fence. As he was going over the fence I just seen Mr. Mart's hand hit him in the back with his right hand. It was dark then, no yard light. There was no light on the porch. I could see out to the gate from the light shining out of the house. After Loomis got over the fence he says 'Well, he got me'. When Mart took down the walk after Loomis he was cussing, * * * When I got to the road I found Loomis bleeding pretty bad. He says, 'Get me to a doctor'. He and I went to Dr. Gower in Pocahontas at his home. I helped take his clothes off, his shirt and jacket. This jacket and shirt looks like the one I took off. It had that hole and stains in the back of it. I didn't take his undershirt off. I saw his back, it looked just like a long gash and was bleeding terrible.'

Dr. Gower testified in part as follows: 'I practice medicine here in Pocahontas. Graduated from the University of Chicago and interned eighteen months at Cook County Hospital in Ghicago. I have had experience in treating different kinds of wounds including one knife wound that I recall. I recall treating Harold Loomis at my house on the night of October 29th. He was helped into the house and seemed to be in somewhat weakened condition. He told me he had a knife would in the back. I proceeded to examine it and could see the clothing was bloody and that there was a wound on the right side of the back. We got him into bed in the next room, the clothes were removed and I prepared to take care of the wound surgically and scrubbed up and cleaned the wound. He was in somewhat weakened condition, almost collapsed on the floor in transferring him from one room to another and had to be lifted up on the bed. I presume the cause of weakness was loss of blood. Without medical attention his wounds could have been fatal. He was still bleeding but not profusely. If it hadn't been attended to the blood might have coagulated. It was not bleeding freely, just oozing. I examined the depth of the wound with a retractor. That is an instrument we use to spread the would apart. The wound was about three and one-half inches long, starting over the lower right side of the chest and made a diagonal course for three and a half inches. With a retractor I could see one rib exposed at the bottom, so that it cut through the skin, the fat, and the muscle tissue down to the ribs on that side. It was a wound such as would have been made with a sharp instrument. I could not tell from direct examination the extremity of the would or penetration, however the X-ray revealed some fluid inside of the chest cavity which I presume was blood.'

At the close of the State's evidence in chief, defendant made a motion for a directed verdict and the same was overruled. The motion was not renewed at the close of all the evidence. Defendant testified in his own behalf, in part as follows: 'I remember my wife and Mr. Nieman asking us to break it up. Mr. Loomis said for me to let him up. After he asked me several times to let him up I let go of him and got up. As soon as Loomis got up and I got on my feet he started slugging me. He hit me in the right temple and above the left eye. I became very dazed and reeled almost ready to go down. I reached in my pocket to get my knife. I have the knife here. * * * He started to leave and as I recall I must have went with him. Don't remember whether I struck him or not. The speed with which I followed him was slow rather than rapid. I didn't curse him to my knowledge. I don't know what blade of this knife was open. Would say it was the center blade because it is the easiest got open. * * * I at no time had any intention of killing anyone with that knife.'

The abstract of the record shows no objection by defendant's counsel to any of the evidence or testimony. As above stated, the motion for directed verdict was not renewed at the close of the evidence. No exceptions were interposed to the instructions to the jury and there was no motion for a new trial. Of the eleven assignments of error urged here for a...

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