State v. Nott

• Decision Date: 20 October 1914
• Docket Number: 29634
• Parties: STATE OF IOWA, Appellee, v. HENRY NOTT, Appellant
• Court: Iowa Supreme Court

149 N.W. 79

168 Iowa 617

STATE OF IOWA, Appellee, v. HENRY NOTT, Appellant

No. 29634

Supreme Court of Iowa, Des Moines

October 20, 1914

REHEARING DENIED TUESDAY, JANUARY 26, 1915.

Appeal from Taylor District Court.--HON. H. K. EVANS, Judge.

THE defendant was accused of murder and convicted of manslaughter. He appeals.

Affirmed.

McCoun & Brant, for appellant.

George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for appellee.

LADD C. J. DEEMER, GAYNOR and WITHROW, JJ., Concur.

OPINION

LADD, C. J.

The defendant was marshal of the incorporated town of Gravity and on April 22, 1913, struck Ed Brand on the head with a "billy," thereby causing his death. The evidence tended to show that Brand was intoxicated; that this was made an offense by the town ordinances and that thereunder it was the duty of defendant to arrest Brand and that the killing occurred in attempting so to do. Whether defendant struck Brand once only with his "billy" or repeatedly was in dispute. The evidence of the state tended to show that Brand had jerked away from defendant once or twice; that then defendant struck him at least twice and that when Brand was on his knees with his hand up pleading for time, defendant delivered the fatal blow. On the other hand, defendant testified that when he took hold of Brand and told him to consider himself under arrest, he jerked away twice and then they clinched and, quoting:

"He struck me twice, once on the shoulder and once on the neck . . I did not hit him with my billy up to the time I threw him over the bank. After he went down over the bank he fell on his knees and I went down in front of him. He put up his hand and says 'couldn't you wait a minute.' I says yes, he got up on his feet, he spilled some papers. I then stood there and looked at him. I then grabbed hold of him when he was down off the bank, was going to pull him down and he asked me if I couldn't wait. . . . After I was trying to pull him down he asked me to wait a minute, he said he would go with me. He got up and walked upon the bank and I picked up his papers and gave them to him. I says Ed come along and go now. He says 'you damned son-of-a-bitch I won't do it, I will cut your guts out' and drew his knife. I hit him at the side of the head, I didn't aim any more than to prevent him hitting me with the knife."

I. One Houk was asked, "What, if anything, did you notice about him (deceased) when you met him at the barn?" A. "Well, he was kind of give out."

The defendant moved to strike the answer without naming any ground therefor. The motion was rightly overruled.

One Downing was allowed to testify over objection that he and defendant had been talking about a party who had recently been beaten into insensibility in Gravity and that defendant then said he was going to get some more of them in the same way. This was in the nature of a threat which, though general, might have included deceased and evidence concerning it was for that reason admissible. State v. Windahl, 95 Iowa 470, 64 N.W. 420.

II. Appellant criticizes several of the instructions, but as exceptions thereto were not preserved in the manner exacted by Secs. 3 and 4 of Chap. 289 of the Acts of the Thirty-fifth General Assembly (Secs. 3705-a and 3705-b, Code Sup. 1913), these cannot be considered. These sections read:

"Sec 3. All requests for instructions must be presented to the judge before the argument to the jury is commenced and before reading his charge to the jury. The judge, before reading his charge to the jury, shall present all instructions to counsel on either side, each of whom shall have a reasonable time in which to examine the same. All objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness; but upon a showing in a motion for a new trial that an error in such instructions was not discovered by the party claiming the error at the time of trial, such objections or exceptions may be made in the same manner in such motion for a new trial and no other objection or exception to the instructions shall be considered by the supreme court on appeal, except those made as above provided. The objections or exceptions must point out specifically the exact grounds thereof, and no other objections or exceptions shall be considered by the trial court upon motion for a...