State v. Norton

• Decision Date: 20 June 1939
• Docket Number: 44762.
• Citation: 286 N.W. 476,227 Iowa 13
• Parties: STATE v. NORTON.
• Court: Iowa Supreme Court

286 N.W. 476

227 Iowa 13

STATE v. NORTON.

No. 44762.

Supreme Court of Iowa.

June 20, 1939

Appeal from District Court, Wapello County; Geo. W. Dashiell, Judge.

Defendant indicted for first degree murder, appealed from a verdict of manslaughter.

Affirmed.

In murder prosecution, instruction defining manslaughter as unlawful killing of a human being, without malice or deliberation, as upon a sudden quarrel or upon sudden adequate uncontrollable provocation, was not subject to objection that reference to a sudden quarrel or sudden uncontrollable provocation induced jury to believe that the case before it was a case of manslaughter.

Hunt & Hunt, of Ottumwa, for appellant.

Fred D Everett, Atty. Gen., Edward J. Grier, Co. Atty., of Ottumwa and Jens Grothe, Asst. Atty. Gen., for the State.

STIGER, Justice.

Defendant plead self-defense. Defendant's first assignment of error is that the court erred in admitting in evidence a voluntary written statement made by him a few days after he was arrested which is designated Exhibit P-1. Defendant claims that the exhibit was not a confession because it was a statement accompanied by an explanation which negatived criminality and the error complained of is that " while the Court finally withdrew Exhibit P-1 from the consideration of the jury as a ‘ Confession’ he nevertheless admitted it as an ‘ Admission’, without separating out the parts which were ‘ Admissions' from any parts which might be, or thought to be, ‘ Confession’ ."

The statement was not a confession because it was not an acknowledgment of guilt of the crime charged. The instrument contained a statement of facts and circumstances from which guilt might be inferred, constituted substantive evidence of the facts stated, and was admissible as an admission in support of the charge. State v. Davis, 212 Iowa 131, 235 N.W. 759; State v. Long, 189 Iowa 512, 178 N.W. 321; State v. Cook, 188 Iowa 655, 176 N.W. 674; State v. Abrams, 131 Iowa 479, 108 N.W. 1041.

The trial court, in Instruction 16, after giving the usual cautionary statement of the weight to be given admissions, stated:

" 16. There has been admitted in evidence in this case and will be before you for your consideration exhibit P-1 which has been referred to as a confession signed by the defendant.

You are instructed that this exhibit is not admitted as being a confession of guilt on the part of the defendant, but as an admission by him of the truth of the matters therein contained."

Exhibit P-1 was not a confession, was admissible as an admission, and the trial court gave a correct instruction in regard to it.

Defendant complains that Exhibit P-1 had been before the jury as a confession repeatedly during the course of the trial and that the court, in excluding the exhibit as a confession, but admitting it as an admission, should have defined such terms so that the jury would be in a position to distinguish them. The state, in introducing the exhibit, did not refer to it as a confession and we are unable to find in the record a reference to the exhibit as a confession that would constitute prejudicial error to the defendant. The court specifically told the jury that the exhibit was not a confession. There is no error in this assignment.

II.

Defendant, on the issue of self-defense, did not offer evidence of the actual character and general reputation of deceased as a violent, dangerous, quarrelsome man of which he had knowledge. State v. Rhone, 223 Iowa 1221, 275 N.W. 109; State v. Leeper, 198 Iowa 83, 199 N.W. 341; State v. Wallack, 193 Iowa 941, 188 N.W. 131.A witness for defendant was asked about the conduct of the deceased when he was requested to assist in repairing a road in the neighborhood. Defendant states that the purpose of the question was to show that the deceased had a violent disposition and predicates error on the action of the court in sustaining an objection to the question. Defendant did not offer to show what answer the witness would have given. Assuming that the answer would have been favorable to the defendant, the question called for specific acts of Carder at a time remote from the date of the crime, it was not shown that the conduct referred to was known to the defendant and the court was right in sustaining the objection. State v. Beird, 118 Iowa 474, 92 N.W. 694; State v. Hunter, 118 Iowa 686, 92 N.W. 872; State v. Buford, 158 Iowa 173, 139 N.W. 464; State v. Sale, 119 Iowa 1, 92 N.W. 680, 95 N.W. 193; State v. Graham, 61 Iowa 608, 16 N.W. 743.

III.

In Instruction number 5, the court defined manslaughter as the unlawful killing of a human being without malice, express or implied, and without deliberation, as upon a sudden quarrel or upon sudden adequate uncontrollable provocation. The objection to the instruction refers to the words " upon a sudden quarrel or upon a sudden uncontrollable provocation." Defendant states: " It is evident that they (the jury) thought those words referred to this particular case. To thus add that instruction as an illustration in this case, was to in effect call undue attention of the jury to the very situation involved in this particular case and to have thus tended to lead them to believe that this particular case was in fact ‘ Manslaughter’ . Said instruction was therefore unduly and highly prejudicial to this defendant."

The instruction is not subject to the complaint made against it. The court first defined " manslaughter" and then gave the jury two illustrations of the crime, which, under the evidence, were favorable rather than prejudicial to defendant. The instruction does not directly or indirectly tell the jury that the defendant killed Carder upon a sudden quarrel or upon sudden provocation. It leaves to the jury to determine, under its guidance, whether or not the defendant was guilty of the crime.

IV.

In Instruction 5 on self-defense, the court stated that: " If you shall find from the evidence in this case that just before the defendant killed Alva Carder, he had been unlawfully assaulted, or was threatened with an assault by the said Alva Carder, and that from the character of said assault or threatened assault, and the weapon used, he had reason, as an ordinarily prudent and courageous man, to believe, and did in good faith and honestly believe, that he was in danger of being killed, or of suffering great bodily injury," etc.

The instruction also stated that the defendant had the right to " use such force and means to defend himself as may in good faith appear necessary to him as an ordinarily prudent and courageous man under all the circumstances at the time surrounding him."

Defendant asserts that the use of the word " courageous" constitutes reversible error, citing State v. Sipes, 202 Iowa 173, 209 N.W. 458, 463, 47 A.L.R. 407.

The Sipes case, supra, did not reverse because of the use of the word " courageous." The court states: " Complaint is made about the use of the word ‘ courageous.’ The word should have been omitted. The term ordinarily used, under such circumstances, is ‘ ordinarily prudent and cautious man." ’

To justify or excuse the killing of another in self-defense, the defendant must have a reasonable fear or apprehension that he is in danger of being killed or receiving great bodily injury and must have reasonable grounds for such apprehension. The quality of courage is inherently involved in the test of the reasonableness of defendant's fear. The honest belief of a timid man that he is in danger of being killed and that it is necessary to kill to save his own life is manifestly not a safe test or standard of justification or excuse; nor should the defendant be held to the high standard of what a very brave man would judge and believe to be a situation of great danger. To require a defendant to estimate his danger, as an ordinarily courageous man would estimate the danger under all the circumstances, is a safe, reasonable standard.

The words " prudent" and " cautious" are synonyms. This court has often approved the use of the phrase " an ordinarily * * * prudent and courageous man" in an instruction on self-defense. State v. Crawford, 66 Iowa 318, 23 N.W. 684, 685; State v. Dyer, 147 Iowa 217, 124 N.W. 629, 27 L.R.A.N.S., 459; State v. Thomas, 172 Iowa 485, 154 N.W. 768; State v. Shannon, 214 Iowa 1093, 243 N.W. 507; State v. Baker, 157 Iowa 126, 140, 135 N.W. 1097, 138 N.W. 841.The instruction given is correct.

V.

Instruction 7 is an accurate statement of the law of self-defense. In this instruction the court stated that: " Where one is assaulted or threatened with an assault by another, in such manner as to induce the person assaulted, or threatened with an assault, to reasonably believe that he is at the time in actual danger of losing his life, or of suffering great bodily harm, he is justified in defending himself although the danger be not real, but only apparent. * * * But before one is justified in taking life in self-defense, it must be, or it must reasonably appear to be, the only means of saving one's own life, or of preventing great bodily injury," etc. (Italics supplied.)

Defendant complains of the use of the phrases " he is justified in defending himself" and is " justified in taking life", alleging that it " impliedly places the burden of proof on the defendant to justify his actions." We do not agree with this contention. At the close of the instruction the court told the jury that: " you will remember that the burden is upon the state to prove by the evidence and beyond a reasonable doubt that in doing what he did, he was not acting in self-defense."

The instruction explained the doctrine of and elements constituting self-defense. If one person kills another in self-defense it is justifiable or excusable homicide.

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