State v. Meshek

• Decision Date: 13 June 1883
• Citation: 16 N.W. 143,61 Iowa 316
• Parties: STATE v. MESHEK
• Court: Iowa Supreme Court

16 N.W. 143

61 Iowa 316

STATE v. MESHEK

Supreme Court of Iowa, Des Moines

June 13, 1883

Appeal from Tama District Court.

INDICTMENT FOR MURDER. There was a conviction of murder in the second degree, and the defendant appeals.

AFFIRMED.

W. H Stivers, for appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

SEEVERS, J.

I.

In his opening statement to the jury, the district attorney made a full statement of what he expected to prove, and, among other things, he said that on the evening preceding the homicide the defendant had a difficulty with one Cresek, and that he made an assault upon the latter. When the parties were about to separate, Cresek told the defendant, in substance, that he "would take the law to him." On the same evening or night, Cresek filed an information against the defendant before a justice of the peace, who thereupon issued a warrant for the arrest of the defendant, and it was while the deceased, a constable, was attempting to make the arrest on the warrant, that the homicide was committed. The district attorney further stated that immediately after the conclusion of the difficulty with Cresek the defendant procured the revolver with which the fatal shot was fired. The defendant objected to the district attorney stating to the jury anything about the difficulty between the defendant and Cresek, but the objection was overruled, as we think correctly. Because of that difficulty, the warrant for the arrest of the defendant was issued. The defendant was informed that Cresek would make the attempt to punish him for the act done, as provided by law, whereupon he procured the revolver. The defendant sought to excuse the homicide on the ground that he acted in self defense. It is true, the district attorney was unable to obtain evidence to sustain some of the foregoing statements, but he made them in good faith, believing, and having good reason to believe, that he would be able to introduce evidence sustaining all of them. Such evidence, we think, would have been material, and had a tendency to show the object and motive in procuring the revolver, and that the plea of self defense was an afterthought. We do not think that there was prejudicial error in allowing the statement to be made.

II. This case was before the court at a former term. The evidence now is substantially the same as then. For a statement of the material facts, see 51 Iowa 308. In the printed argument, counsel for the appellant states that the affidavit "of Cresek, upon which the warrant of arrest was issued, was read in evidence by the state to the jury." It is said that this appears on page of the transcript. The transcript contains near five hundred pages and counsel would have greatly abbreviated our labors, and made a mistake on our part impossible, if he had stated the page of the abstract on which the evidence of the claimed fact was to be found. If this were a civil case, we incline to think we would not feel bound to make the required examination, when counsel for some unknown reason have seen proper to make such an indefinite reference.

As this is a criminal case, and the defendant has been convicted of a serious crime, it is our duty to look through the record whether our attention is called to...