State v. Mickle

• Decision Date: 10 March 1925
• Docket Number: No. 36291.,36291.
• Citation: 199 Iowa 704,202 N.W. 549
• Parties: STATE v. MICKLE.
• Court: Iowa Supreme Court

199 Iowa 704

202 N.W. 549

STATE

v.MICKLE.

No. 36291.

Supreme Court of Iowa.

March 10, 1925.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

The defendant, Cecil Mickle, was indicted on September 13, 1923, by the grand jury of Polk county, Iowa, for the crime of murder in the first degree. He was tried, convicted, and sentenced to imprisonment for life. From the judgment entered, he appeals. Affirmed.David Snow, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Vernon Seeburger, Co. Atty., of Des Moines, for appellee.

DE GRAFF, J.

Cecil Mickle was jointly indicted with one Jack Gaskill for the crime of murder in the first degree. The victim of the homicide was Thomas B. Griffin, who died November 15, 1923, from bullet wounds inflicted as charged in the indictment by the defendants. It appears from the record that the defendant, Mickle, and his associate, Gaskill, were joint adventurers in crime. On the day of Griffin's death they had been engaged in stripping an automobile which they had stolen the preceding night, but before completing the job they abandoned the enterprise, having become suspicious that their movements had been observed by a farmer residing near the scene of their activities. They returned to the city of Des Moines about 5:30 p. m., and went to the home of this defendant. At this time and place Gaskill remarked that as the day had not yielded them anything, they had better go down to the railroad yards and see what they could find. Thereupon they decided to go to Gaskill's room, but changed their plan and stopped in the alley in the rear of said room. At this time and place Gaskill gave to Mickle an automatic revolver, which he placed in his belt. They then went down Grand avenue to Sixteenth street and south to the railroad tracks, where they observed some moving freight cars. Shortly thereafter Griffin, who was an officer and special agent in the employ of the Chicago, Rock Island & Pacific Railroad Company, observed the movements of the pair. The defendant Mickle was a witness on his own behalf, and on direct examination testified:

“Gaskill was with me all the time. We were going to break into a box car down there. There was a train in motion headed west. We were going to get on the train and someone hollered at us. I started to run and some one hollered and told me to stop.”

Upon cross-examination, he testified that the man who hollered at them just wanted to know “what we were doing down there.” “I think he told us to get out of there. I was going to get on the box car. I was right up close to it. That is when Griffin yelled at me.” In a written confession, signed and sworn to by the defendant Mickle, he stated that when Griffin called out that he (Mickle) reached for his gun and fired in the direction where he thought Griffin was, that he was about 20 feet from Griffin, and that Griffin was standing about 20 feet from the northwest of where Gaskill was standing. He furthermore stated that after he fired the shot he walked toward where Griffin was lying and--

“I fired three more shots into him. I was then about three or four feet away from him. It was about 7:30 P. M. when I fired the shots that killed Griffin.”

The defendant, Mickle, upon the witness stand testified that he carried a .45-caliber automatic, while in his written confession he stated that he had a .32-caliber gun. It is shown that Griffin's death resulted from a .32-caliber bullet. Upon the trial he further testified that at the time he and Gaskill were about to get on the train “some one hollered at us. I started to run to the south about 20 or 30 feet. I heard some firing, several shots. Some one hollered and told me to stop. I thought it was Gaskill. He said he would shoot me if I didn't stop. When Gaskill or some one said, ‘Stop!’ I ran south. My gun was in my belt. I did not pull it out of my belt or fire it that night.” After Griffin was killed, Mickle and Gaskill went to the home of the former, where Mickle stated that he gave his gun to Gaskill. They then went to the house of Betty Ruth and stayed all night. She testified that they reached her house about 8 o'clock on the evening of November 15th, and that they wanted a room for the night; that they stayed there all night and left about 8 o'clock the next morning. On the morning of the 16th they went to Mickle's room, where they stayed until 8 o'clock that evening when they went to a restaurant at Ninth and Grant avenue and had supper. It is shown that they did not sit in the front end of the restaurant, but entered the back door and both of them ate in the kitchen. They left the place by the back door. This is shown by the testimony of the proprietor of the restaurant. Mickle was arrested in Gaskill's room about 9 o'clock on the morning of the 21st of November, 1923.

[1] The ingredients of the crime of murder in the first degree find ample support in the record, and the confession is corroborated in certain essentials directly and circumstantially. There is but one question deserving of serious consideration on this appeal: Was the confession a confidential communication within the meaning and purview of the statutory definition? To make answer one must visualize the facts and understand the relations of the parties at the time and place of the confession. The defendant was in the county jail when the confession was made, and his then attorney, A. E. Minetor, was present. The statement was dictated by the defendant to a Mrs. Berron, a stenographer employed by the Rock Island Railroad Company, and was transcribed by her. After its transcription the statement was signed by the defendant and...