State v. Menilla

• Decision Date: 29 June 1916
• Docket Number: 30431
• Citation: State v. Menilla, 177 Iowa 283, 158 N.W. 645 (Iowa 1916)
• Parties: STATE OF IOWA, Appellee, v. ADDIE MENILLA, Appellant
• Court: Iowa Supreme Court

158 N.W. 645

177 Iowa 283

STATE OF IOWA, Appellee, v. ADDIE MENILLA, Appellant

No. 30431

Supreme Court of Iowa, Des Moines

June 29, 1916

Appeal from Monroe District Court.--F. M. HUNTER, Judge.

INDICTMENT charging murder in the first degree. Conviction of murder in the second degree. Defendant appeals.

Reversed.

W. E Giltner and N.E. Kendall, for appellant.

George Cosson, Attorney General, Charles E. Miller, County Attorney David W. Bates and J. C. Mabry, for appellee.

SALINGER J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

I.

It is first complained that the rule which permits one to kill in defense of another if he honestly and reasonably, though mistakenly, believes that, else, the one apparently threatened will suffer injury or death, was, and should not have been, qualified by adding that the belief or knowledge of the one defending should be considered in determining whether the fear on part of the defender was justified. For the claim that such qualification constitutes error, 41 cases are cited. Of these, 15 have no bearing on the point; 16 are to the effect that one acting in self-defense may act on appearances, and that the question is not whether he be actually in danger, but whether he has acted reasonably upon an honest and justified belief that he is; 7 hold that this is the rule in the defense of a relative or other person; 1 is that the justice of the fear may not be shown by opinion testimony; another, that accused may testify as to the state of his feelings when he acted; still another deals with what former acts of deceased are admissible on whether accused acted reasonably. In citations to support other points made, these rules are affirmed in 20 more cases. This, the gleaning out of the 61 citations, has little bearing upon whether what is urged to be is error. The omitting these citations would have greatly lightened our labors without impairing the chances for a correct decision of the appeal. For these citations do little more than to declare well-settled law, which, so far as relevant, we could have been persuaded to adhere to without being subjected to the examination of an army of books. When all is done, we are, practically, still forced to deal with the assignment as presenting an open question.

The opinion will develop that what was done on this point was also done as to most of the matters urged upon us. We feel constrained, in self-defense and in defense of the rights of litigants, to say that which we hope will tend to discourage such practice. There are two bad paymasters, one who pays before anything is due, and one who does not pay though payment be due. Underpresentation deprives us of proper aid to consideration. Overpresentation dissipates and wastes the time and energies of this court when every ounce of either is precious because of the tremendous volume of business submitted to us. Of course, if needless citations show upon their face that they are needless, the injury would be limited to waste of time on part of presenter, and the wrong done the court and all who suffer when it is thus wronged, would be minimized. The trouble is that usually the claim is made that the citations sustain one side of a material controversy, and it is only after the cases are examined that it can be known that they do not so sustain it, or that they give it a support which it does not need. It assumes the aspect of that test between mushrooms and toadstools, which is that, if the eater is killed, it was toadstools. On this method of presentation, we are usually unable to ascertain that our time and energy have been wasted, except at the expense of first wasting them.

II. As to what is involved in said first complaint, Instruction 31 is:

If the jury find that deceased was not armed with a razor, and was not assaulting the son of accused in such manner as, if not prevented, would be likely to cause death or inflict upon him some great bodily injury, and if the son "at that immediate time knew, or as a reasonably prudent and cautious person should have known, that he was not in such peril or danger, then defendant was not justified in shooting or killing" deceased, and no verdict in her favor should be returned.

If the jury could find that defendant honestly and reasonably believed that her husband was about to kill her son unless she shot, the homicide resulting was justified, even though the son knew at the time, or should have known, that he was in no deadly peril. The instruction violates the elementary rule that the honest and reasonable viewpoint of the accused controls. If the defendant may be convicted because of the knowledge or belief of another who is apparently threatened, the mental attitude of the accused is of no importance. If this charge may be upheld, then, should father and son, as a practical joke, make the mother believe that the son was about to be killed by shooting,--if the mother, spurred by an irresistible and justified agony of fear, interfered and killed the husband,--she may be convicted of murder because the others knew that the gun pointed at the son was not loaded. No matter what others knew, as to her, the unloaded gun must be dealt with as a deadly weapon.

2.

The essence of another part of this instruction is:

If she thought and believed, when she fired the shot, that her son was in deadly peril, and the jury finds he was not, and fails to find that the shooting was deliberate, premeditated and done with malice aforethought, then the verdict cannot go above manslaughter.

Without a finding that defendant acted in justified fear, she was entitled to an acquittal of anything above manslaughter if it should be found that deliberation, premeditation and malice aforethought were absent. A finding that she was justified in reason to fear for the life of her son, and acted justifiably in the light of that fear, entitled her to an acquittal even though the fear was in fact not justified. The instruction errs in that it rules that, if the jury makes a finding which requires an acquittal, and another which should stop the verdict at some point below murder, the two findings together have no effect beyond prohibiting a verdict above manslaughter.

III. The defendant testified that she knew deceased always hated Charley, and that she heard him at different times express his disregard and ill will toward Charley. She was then asked whether she ever heard him make any threats against her son. To this, objection was sustained that it was an opinion and conclusion of the witness.

Next, she was asked whether she knew, of her own personal knowledge, that deceased, at a time prior to this homicide, had made an assault upon Charley with a razor. Answer to this was excluded, on the objection that it was incompetent, irrelevant and immaterial. To whether at any time when they lived on a farm, spoken of as six years ago, she saw deceased pursuing Charley, "running him with a razor," the State objected that it was incompetent, irrelevant and collateral. Counsel for the defense explained that it was offered on whether the conduct of defendant was that of a reasonably prudent and cautious person; but the objection was sustained.

Defendant then testified that she remembered the occasion that caused the son to leave while they were on the farm. She was then asked when and what was the occasion that caused him to leave home. Objection that this was immaterial, incompetent, too remote and called for the opinion and conclusion of the witness, was sustained. Witness then stated that she was present right at the time when he left. To whether deceased at that time said anything to her about what he intended to do to Charley, objection that it was incompetent, immaterial, irrelevant and too remote was sustained. The same objection was sustained to the question what, if any, threats witness heard deceased make at that time as to what he would do in the way of taking the son's life if he caught him. And the same objection was sustained to the question whether witness, and on that occasion, saw deceased after the son Charley with a razor, pursuing him. To whether defendant, on another occasion, when she lived at Hamilton, before she lived on this farm, accused deceased of trying to kill the son, the objection that it was incompetent, called for the opinion and conclusion of the witness, and was too remote, was sustained. So of the question whether defendant, in the presence of a brother of deceased, who was in court, had accused deceased of trying to kill this son.

The effect of all this was to exclude testimony of threats against and assaults upon Charley made mostly some six years before the homicide, and of some made longer before.

In support of an assignment that this proposed testimony of previous threats against and assaults upon the son was erroneously excluded, we have another flood of authorities. As we understand it, the State justifies the exclusion on the grounds that the time is too remote, and that the proposed testimony was or would be made up of objectionable conclusions. Nevertheless, appellant cites 8 cases in this and in other jurisdictions, which cases merely announce that as a general rule, previous threats by and past conduct of deceased are admissible. 30 more deal with conduct and threats so recently prior to the homicide as that no one would assert that they should be excluded for remoteness. All of them deal with conduct closer to the act in inquiry than the limit which the State urges. 5 hold that time is of no consequence if the acts continue or were repeated, or when they are intimately connected with the circumstances leading up to the homicide. 19 assert that, as a general rule, remoteness goes to weight, but affects...