State v. Miller
| Decision Date | 17 February 1942 |
| Docket Number | 45687. |
| Citation | 2 N.W.2d 290,231 Iowa 863 |
| Parties | STATE v. MILLER. |
| Court | Iowa Supreme Court |
Yeaman & Yeaman, of Sioux City, for appellant.
John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., Louis Corcoran, Co. Atty., of Sibley, and Earl Fisher, Co. Atty of Rock Rapids for appellee.
At about ten o'clock on the evening of May 16, 1940, appellant was seated at the south end of the Corner Cafe in the town of Doon. While there, the prosecuting witness, Kersbergen, and Bernard Mann, hereinafter referred to as Red, came in and took seats in booths arranged along one side of the restaurant. Shortly after the arrival of Kersbergen and Red appellant walked to the bar opposite the booths in which the former were seated, and bought a glass of beer. Appellant and the others had been friends for twenty-five years or more. Notwithstanding this it is the claim of Red and of the prosecuting witness that without any provocation, and to use the expression of one, "out of a clear sky," appellant called them a vile name whereupon both of them jumped up. Red reached appellant first and gave orders to Kersbergen to stay out of it.
Red grabbed appellant by the neck and slapped him with such force as to knock him over into a booth. Whether Red helped him up or dragged him out is not clear but he led appellant to the door meanwhile striking him in the face with his fist once or twice. The last blow was struck in the cafe as they reached the door and appellant stumbled or fell out onto the steps or to the sidewalk. Red estimates the number of times that he struck appellant was the slap with the open hand and four times with a clenched fist. Appellant made no effort to defend himself or to strike back. Getting on his feet he started to run to the northeast across the street towards the Bauer home. For convenience of reference a photostatic copy of a plat used in evidence, exhibit "3", is here inserted.
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Red started in pursuit with Kersbergen close behind. Whether the appellant was knocked down in the street before he reached the Bauer building or stumbled is not clear. Red testified that he (appellant) stumbled just as he grabbed appellant. All of the witnesses for the prosecution who testified on the subject say that appellant was lying on the ground in the street begging that he not be hit any more.
Getting to his feet with or without assistance appellant, in the grasp of Red, was then led back to the Corner Cafe for the purpose or on the pretext of getting his cap. Red thus refers to appellant's condition at that time:
Red's professed desire to wash up appellant could well have been carried out at the Corner Cafe where appellant had been at the beginning. Instead he took appellant west across the street and down to what is marked on the plat, Cosmo Cafe keeping hold of him all the time, parading him down the street so that his bruised and battered condition might be seen by the crowd.
When they reached the Cosmo Cafe appellant expressed himself as not wanting to go in whereupon Red proposed that he take him to the fountain located at the northwest corner of the intersection near the building marked Farmers Hardware on the plat. To accomplish this appellant was walked in the gutter while Red kept to the sidewalk. Coming to the southwest corner of the intersection Red started to lead appellant diagonally across the intersection. When they got part way across appellant broke away from Red and started back to the south in the direction of his car which was parked near the place marked on the plat as the "Back Door" of the Corner Cafe. At this point Red seemingly having concluded that appellant had been maltreated enough, expressed the purpose of letting him go.
But at this point the prosecuting witness, Kersbergen, who had followed close behind appellant and Red throughout, took a hand. He had been ready to assault appellant in the beginning and would have done so except that he was ordered by Red to keep out.
Before continuing with the record dealing with the prosecuting witness' activities, it will be of interest to note Red's attitude. After testifying to the vile name he alleges appellant used towards Red and Kersbergen (though no one else in the cafe heard it), he then narrates in part his treatment of appellant:
After telling how appellant went down on the steps at the Corner Cafe the witness continued:
After some further testimony not necessary to be set forth, Red continued:
Elaborating somewhat as to what happened at the door of the Corner Cafe, Red said:
Red was asked: He answered:
As indicating something more of the attitude of Red we quote the following from the transcript:
It should be said that Red was a tractor operator, 36 years old, weighing 187 pounds: and Kersbergen, a former garage operator, 53 years old, weighing 160 pounds. Appellant was past 60.
We return to the prosecuting witness' part in this affair. This witness as has been pointed out followed close behind Red during all the abuse to which appellant was subjected. When appellant finally escaped from Red and started for his car the prosecuting witness took up the chase and followed him on the run...
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