State v. Mushrush

• Decision Date: 08 April 1896
• Citation: 66 N.W. 746,97 Iowa 444
• Parties: STATE v. MUSHRUSH.
• Court: Iowa Supreme Court

97 Iowa 444

66 N.W. 746

STATE

v.MUSHRUSH.

Supreme Court of Iowa.

April 8, 1896.

Appeal from district court, Audubon county; A. R. Thornell, Judge.

The defendant was jointly indicted with William McLaughlin, Walter Case, Charles Jones, and William Mushrush for the crime of murder in the first degree, in the killing of one Frank H. Leib. This defendant was separately tried, and convicted of the crime of manslaughter, and judgment of imprisonment in the penitentiary for a term of five years entered against him, from which he appeals. Affirmed.H. U. Funk, for appellant.

Milton Remley, Atty. Gen., and William Wonn, Co. Atty., for the State.

GIVEN, J.

1. On the evening of March 9, 1894, this defendant, in company with the other defendants and one Moon, went from the town of Audubon to a schoolhouse in the county, to a public meeting that was quite largely attended. Three brothers (Frank H., Leopold, and Otto Leib) were among those present. During the evening a quarrel arose between the defendant Case and Otto and Leopold Leib, on the porch in front of the schoolhouse. During the progress of the quarrel, Frank H. Leib came from the inside of the house, and, after a few words, assaulted Case, knocked him off the porch, and was pursuing the assault, whereupon defendant McLaughlin stabbed him in the abdomen with a knife, inflicting a mortal wound, of which the said Frank H. Leib died in a few days thereafter. There is no evidence, nor is it claimed, that this defendant made any assaults or inflicted any injury upon deceased. The claims of the state are these: That this defendant and William McLaughlin and others had conspired and agreed that an attempt should be made to whip Frank H. Leib, or inflict some injury upon his person, or upon him and his brothers, and that the killing was done by McLaughlin in an attempt by him to carry out that unlawful purpose; that, before the killing, McLaughlin contemplated and designed to inflict some injury upon the person of Frank H. Leib, or upon him and his brothers, and that before Leib was stabbed by McLaughlin this defendant knew of such intention upon the part of McLaughlin, and advised, or encouraged or incited him to carry out said unlawful purpose; and that the wound which caused Leib's death was inflicted by McLaughlin in an attempt to carry out said unlawful purpose. The defendant, by his motion for a verdict and his motion for a new trial, which were overruled, and by exceptions to instructions given and refused, has preserved, and here presents, the question whether the evidence is sufficient to sustain either of said claims of the state.

2. The following is, in substance, the evidence tending to show defendant's connection with the affair: A few evenings prior to the affray at the schoolhouse, McLaughlin and this defendant were together at a dance at the house of a Mr. Seimsen. Frank H. Leib was also there. McLaughlin said, in the presence and hearing of this defendant, that he would like to hit Frank H. Leib, and, when asked what for, said “he had it in for that fellow.” Later in the evening, when speaking of Frank H. Leib, McLaughlin said, in the presence and hearing of this defendant: “We will catch him as we go home. I will give you the revolver. You take the revolver, and stand the other boys off while I lick Frank.” The defendant replied that “he didn't need the revolver; he could stand them off with his fists.” In going to the schoolhouse on the evening of March 9, 1894, McLaughlin, Case, this defendant, and Winnie Moon traveled in one conveyance, and William Mushrush drove with them in a road cart. On the way they talked together, in the hearing of this defendant, in substance as follows: McLaughlin said, if more jumped onto him than he could handle, he would give them some steel. William Mushrush said: “If we get into any mêlée, he knew where he was going to get help; that we were all in the same crowd.” And McLaughlin said, “Of course we are, if we are not in the same rigs.” Some one said “that, if anybody picked up a fight with us out there, we would all fight for each other.” Witness Moon asked McLaughlin who he thought was going to pick up a fight out there, and he said “there was a damned big Dutchman coming there to lick him that night,...