State v. Miller, No. 45687.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: SAGER
• Citation: 231 Iowa 863,2 N.W.2d 290
• Docket Number: No. 45687.
• Decision Date: 17 February 1942
• Parties: STATE v. MILLER.

231 Iowa 863
2 N.W.2d 290

STATE
v.
MILLER.

No. 45687.

Supreme Court of Iowa.

Feb. 17, 1942.

Appeal from District Court, Osceola County; R. G. Rodman, Judge.

Appellant was tried upon an information charging him with assault with intent to commit murder in Lyon County on the 16th day of May, 1940. Appellant entered a plea of not guilty and on trial was found guilty. His motion to direct, in arrest of judgment, and for a new trial having been overruled, he was sentenced for a term not exceeding thirty years in the state penitentiary at Fort Madison. He appeals.

Reversed and remanded with directions.

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.

SAGER, Justice.

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

[2 N.W.2d 291]

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.

IMAGE

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:

“A. Well, I thought his face was all bloody and his clothes was bloody, and I thought I had to wash him off so he would look a little respectable.

“Q. The blood had trickled down to his coat and shirt and trousers? A. I don't know about his trousers. His neck was all blood.”

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

[2 N.W.2d 292]

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:

“Q. You just got right up and slapped him, didn't you? A. That's right.

“Q. How hard did you slap him? A. Pretty hard.

“Q. Just about as hard as you could? A. Yes, sir.

“Q. Which hand was it? A. Right hand.

“Q. Was it your open hand? A. Yes, sir. * * *

“Q. You didn't temper that blow one bit because you had known him for twenty years, did you? A. Well, I wouldn't say so; no.

“Q. You didn't have a bit of mercy on him? You just slapped him just as hard as you could? A. I probably did.

“Q. And what happened to him when you landed this ‘hay maker’ on him? A. He slipped and fell in the booth.

“Q. Slipped toward you, then? A. Slipped in the booth behind me.

“Q. He was over here at the counter, wasn't he, at the bar, on the east side? A. Yes, sir.

“Q. How did he get over here into the booth, then? A. I don't know how he got over there. I know he was in there.

“Q. After you got through hitting him? A. Slapping him the first time; yes.

“Q. And he went right down on the table, didn't he? A. Well, partially: yes. * * *

“Q. But he didn't get quite down to the floor? A. No, sir.

“Q. So you got hold of him? Whereabouts? A. By the collar.

“Q. And you grabbed him by the collar with your right hand or left hand? A. Left hand.

“Q. And you kept your right hand free to use again? A. That's right. I used it, too.

“Q. And...