State v. Melia

• Decision Date: 09 December 1941
• Docket Number: 45749.
• Citation: 1 N.W.2d 230,231 Iowa 332
• Parties: STATE v. MELIA.
• Court: Iowa Supreme Court

1 N.W.2d 230

231 Iowa 332

STATE v. MELIA.

No. 45749.

Supreme Court of Iowa

December 9, 1941

Johnston & Shinn, of Knoxville, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Clarence A. Kading, Co. Atty., of Knoxville, for appellee.

HALE Justice.

The defendant, his brother Joe Melia, and Joe's wife Josephine, lived in the same farmhouse in Marion county. The farm was rented by Joe Melia, and was situated about a half mile south of highway No. 60, on a dirt road. Matt M. Melia the defendant, was single, and resided with the family working at times at coal mining.

On the 29th and 30th days of July, 1940, Joe Melia worked at the mine and his wife Josephine and brother Matt were at the farm together. It is alleged by the defendant that the two brothers were to share in the proceeds of the farm. Some business transactions had occurred, previously to the difficulties which arose between them which resulted in the killing of Joe Melia and his wife Josephine. Joe Melia was a large man and his brother, the defendant in this case, was considerably smaller. About 7:30 in the evening of July 30, 1940, Joe was returning to his home and met a neighbor girl. Shortly after this meeting the girl and her sister heard five reports of a shotgun at short intervals, at the Melia residence, which were also heard by another neighbor. About 2:30 o'clock in the morning of July 31, the defendant Matt M. Melia approached the night marshal at Knoxville and said that he had to be put in jail, and in answer to the marshal's inquiry, told him that he had shot his brother and sister-in-law and thrown them in a 64-foot well. The defendant was placed in a cell; the sheriff was called and defendant stated the same thing to him, describing the weapon, a double-barreled shotgun, which he had left at home. The next morning the sheriff, with a photographer and a well digger, recovered the bodies of the husband and wife from the well and they were taken to an undertaker's in Knoxville. A search of the premises disclosed some empty shotgun shells, a woman's shoe near the house, a pair of men's shoes or slippers, and a bloodstain on the ground. The four-room dwelling house had a porch at the south end, located two or two and a half feet above the surrounding ground which sloped towards the east. Wounds caused by the discharge of the shotgun were found in the bodies of both persons, in the back of Joe's head and in his chest. Two wounds were found in the body of Josephine, one higher than the other, the upper wound being between the breasts and over the median line of the breastbone. The course of this wound was upward and towards the left. The other wound was a little lower and to the left of the first one, in the upper portion of the left breast, and the direction of this wound was up and towards the right. There were no punctures or scattered shot wounds around the place where the charge had penetrated.

According to defendant, who testified at the trial, there had been difficulties between the two brothers in regard to money matters, the stock on the place, and the manner of feeding. Defendant says that his brother claimed the sole ownership in the hogs and corn, cursed him, reminded him that he had already given him notice to leave the place, and stated that he was now going to kill him. Defendant states that Joe picked up a club and started for the defendant and defendant crawled through the fence and ran down the road towards the house, and that Joe said there was no place where he could go to save his life, that he would get him wherever he would go. Defendant says that he turned into the small gate and went to the house, seized the loaded double-barreled shotgun from its place near the door, picked up some shells and put them in his pocket, and came back on the porch. His brother approached him; he warned his brother, but he continued coming towards him, and when he was within a few feet of him the defendant raised his gun, pointed it as his brother and fired, and in his excitement and fear, pulled both triggers at practically the same instant of time. Josephine, without the knowledge of defendant, had rushed in front of her husband and received two shots in the breast. Defendant continued shooting at Joe Melia until the latter was killed. He then concealed the bodies in the well, replaced the boards, and wandered about the premises until he finally made up his mind to go to Knoxville and report to the sheriff. He had intended to stop at his brother-in-law's house, but concluded not to tell him what had happened. He drove in the rain, and for quite awhile sat in the rain until the storm had ceased, and then drove on to Knoxville.

There were two indictments found against him, one for the murder of Joe Melia and one for the murder of Josephine Melia, to each of which he pleaded not guilty. He was tried first on the indictment charging the murder of Joe Melia and was found not guilty. Being placed on trial at the December 1940 term of court, for the murder of Josephine Melia, the defendant, in his plea of not guilty, made the additional plea of former acquittal. The jury disagreed. He was again placed upon trial and a verdict of guilty of manslaughter was returned. Motion for new trial and exceptions to instructions were filed and overruled. Defendant was sentenced under the verdict and he appeals.

Defendant makes numerous assignments of error, not all of which we need consider. Objection is made to various instructions. He claims also that the court erred in overruling the motion of defendant for dismissal and directed verdict, since he had previously (case No. 2682) been tried and acquitted for the murder of Joe Melia, and that the time, place, and circumstances attending that slaying were identical with those attending the slaying of Josephine.

I. The five shots, according to witnesses, were fired very close together, and the contention of the defendant is that it was actually one act, and that, under the Constitutions of the United States and of Iowa, the present trial was a violation of the defendant's right not to be tried twice for the same offense; or, in the language of the United States Constitution (Amendment 5): "* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;" and under the Iowa Constitution (art. I, sec. 12): "No person shall after acquittal, be tried for the same offence." The same protection is given to the accused by Code sections 13457, 13807, and 13808. Were, then, the trial and acquittal as to Joe Melia a bar to a subsequent trial for the killing of Josephine? There is no question about the right that the defendant enjoys to be free from a second prosecution for the same offense, but the question is as to what constitutes the same offense.

The text of 15 Am.Jur., pp. 65, 66, sec. 390, is as follows: "The conviction or acquittal of one charged with the murder of, or an assault upon, one person is not a bar to his subsequent prosecution for the murder of, or an assault upon, another person at the same time where the two offenses were due to separate acts; * * *. * * * An exception to the general rule is made in some jurisdictions in cases where the assault upon, or the murder of, two or more persons is committed by one and the same act, as, for example, by the single discharge of a firearm or by one stroke of a knife or other similar weapon." Much confusion has arisen in the application of these rules, arising in some cases from not distinguishing between one act and one offense. The Federal Constitution, and our own State Constitution, as well as the statutes, prohibit double jeopardy for the same offense. The distinction is made in numerous cases, and is expressed in Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, where it is held that a conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one would have been sufficient to warrant a conviction upon the other; and that the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.

In State v Fredlund, 1937, 200 Minn. 44, 273 N.W. 353, 354, 113 A.L.R. 215, it is held that: "It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. Where two or more persons are injured in their persons, though it be by a single act, yet, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses." It should be stated, however, that the position taken by the Minnesota court is not that of all the courts, where the decisions are very much in conflict. In the annotation to the Minnesota case, found in 113 A.L.R., p. 222, the annotator states that: "* * * the following later decisions may be cited as supporting, or at least recognizing as applicable under some conditions, the general rule stated in the earlier annotation (20 A.L.R. 341) to the effect that the conviction or acquittal of one charged with the murder of, or an assault upon, one person, is not a bar to his subsequent prosecution for the murder of, or an assault upon, another person at the same time." Cases cited include those of Alabama, California, Florida, Illinois, Kansas, Kentucky, Louisiana, Minnesota, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Washington, and West Virginia. Some courts extend this doctrine of distinct offenses to situations where the results to different individuals were brought about by a single wrongful act, as a single shot or blow. See annotation...