State v. Moore
| Decision Date | 06 February 1906 |
| Citation | 106 N.W. 16,129 Iowa 514 |
| Parties | THE STATE OF IOWA, Appellee, v. WILLIAM H. MOORE, Appellant |
| Court | Iowa Supreme Court |
Appeal from Muscatine District Court.-- HON. A. J. HOUSE, Judge.
THE defendant was indicted for the murder of one Thomas M Winnemore. There was a verdict and judgment of guilty of manslaughter, and the defendant appeals.
Affirmed.
Richman & Richman, for appellant.
Chas W. Mullan, Attorney General, and L. De Graff, Assistant Attorney General, for the State.
The defendant was a professional horse breaker or trainer and on the day of the alleged offense was engaged in that work in the city of Muscatine, Iowa. A horse having escaped from his control in the public street, appellant procured another horse, which he mounted and rode off in pursuit. The fleeing animal took a route leading along the street on which Winnemore resided, closely followed by the appellant. Winnemore, a man considerably advanced in years, was on or near the sidewalk and as the chase approached he went out into the roadway, and by flourishing his cane sought to stop the horse, which swerved to one side and passed by him. The deceased then turned to go back upon the sidewalk, when he was struck by the horse ridden by the appellant and knocked to the ground, receiving injury from which he soon died. Based upon this occurrence, the appellant was indicted and put upon trial for murder. At the close of the testimony the court instructed the jury that there was no sufficient evidence of malice to sustain the charge of murder, but submitted the case for a verdict upon the charge of manslaughter, which crime it defined for the purposes of the case as "the killing of a human being through a grossly negligent and reckless act, intentionally done by another." Upon the return of a verdict of guilty appellant moved to arrest judgment thereon because of the insufficiency of the indictment to sustain the conviction which motion was overruled. The alleged error in this ruling is the principal proposition urged upon our attention by counsel in argument.
The objection to the indictment is summed up in the claim that, as the indictment does not specifically and in express terms charge the appellant with gross negligence and recklessness in riding upon or over the deceased, he could not properly be put upon trial for an offense committed in that manner. Counsel conceded the general proposition that a charge of manslaughter is included in a charge of murder, and that under an indictment for the latter offense the accused may be convicted of the former; but they insist that where the manslaughter, if any, is claimed to have been committed by gross negligence or recklessness, that fact must be expressly pleaded in the indictment. None of the cases cited by counsel sustain this contention. The farthest which any of them go is to hold that, upon a trial for a crime which does not necessarily include another offense, a conviction cannot be had of such other offense under an indictment which fails to allege the facts constituting it. For instance, a charge of assault with intent to kill does not necessarily include assault and battery, and in order to sustain a conviction of the latter offense upon a trial for the higher crime the indictment must contain averment of the facts constituting a battery. But the case before us is not of that class. The charge of murder in and of itself necessarily includes manslaughter. State v. White, 45 Iowa 325; State v. Clemons, 51 Iowa 274, 1 N.W. 546; State v. Glynden, 51 Iowa 463, 1 N.W. 750; Benham v. State, 1 Iowa 542; State v. Tippet, 94 Iowa 646, 63 N.W. 445; State v. Jackson, 103 Iowa 702, 73 N.W. 467.
Under our statutes all criminal homicides are classed in the three grades of offense known as murder in the first degree, murder in the second degree, and manslaughter, and under a charge of the first or higher grade of homicide a conviction may be had of either of the lower grades, if the testimony be such as to justify it. For instance, if the charge be that the accused unlawfully, feloniously, and with malice aforethought killed another, and the proof sustains the charge as made, he may be convicted of murder in the first degree. If the state succeed in proving the killing and the malice as alleged, but fail to establish the alleged deliberation and premeditation, then there may be a conviction of murder in the second degree. If proof of malice also fail, but the killing is proved to have been done by the accused without lawful justification or excuse, there may be a conviction of manslaughter, but not of murder in either degree. In the case at bar the indictment clearly and specifically alleged that the crime of murder was committed by the appellant by unlawfully, maliciously, premeditatedly, and with malice...
To continue reading
Request your trial