State v. Penney
| Decision Date | 19 December 1900 |
| Citation | 84 N.W. 509,113 Iowa 691 |
| Parties | THE STATE OF IOWA v. JOHN PENNEY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Emmet District Court.--HON. W. B. QUARTON, Judge.
DEFENDANT was jointly indicted with another for the crime of murder in the first degree. He was separately tried, on his own demand and was convicted of the crime charged. From this judgment he appeals.
Affirmed.
J. G Myerly and Mack J. Groves for appellant.
Milton Remley, Attorney-General, and Chas. A. Van Vleck, Assistant Attorney-General, for the State.
The greater portion of the argument made on behalf of defendant is devoted to an attempt to show that the evidence does not support the verdict. The facts, as the jury were warranted in finding them, may be summed up as follows: All the parties concerned were colored men, who were engaged in grading for a railway that was being built through Emmet county. They came from southern states, and had been at work but a few weeks when the homicide occurred. While at work they lived in a camp established by the contractor, one Campbell, in whose employ they were, and which was some three miles distant from Estherville. The person killed was one Walter Lockland, and his death was caused by a bullet from a revolver in the hands of one Cario. The killing was done on the 3d day of October 1889. In the morning of that day defendant had a difficulty with Lockland, and was kicked by him. On account of some trouble with another fellow employe, defendant had been ordered out of the camp by Campbell. During the greater part of October 3d defendant was in the town of Estherville. In the afternoon of that day he met Cario, who had also quit work, and who, the record discloses, had a personal animosity against Lockland. Defendant and Cario, each armed with a loaded revolver, started late in the afternoon for Campbell's camp, ostensibly to dispose of a stove which Cario had there, and to get some other articles of property owned by him. Digressing now for a moment, we will say that, in the morning of the day on which Lockland was killed, a witness (Frazier) saw defendant and one Carter together, and had a conversation with the latter in defendant's presence. He was asked what Carter said in reference to Walter Lockland, and having Penney do anything to him. His answer was: "He just said he was going to town and make--and get a gun and run him out of the camp for kicking him." There is other evidence of Carter's saying in defendant's presence that he would have the latter run Lockland out of the country. When Cario and defendant reached the camp, the latter exhibited his revolver and said, "I will get that bully son of a bitch." After spending a little time in the camp, Cario and defendant started for the place where the men were at work. They met Lockland and some other men returning from work. At this meeting place, which we need not describe, the shooting was done. When first seen, Cario and defendant held their revolvers in their hands. So far as is shown, Lockland had not observed them. Their appearance and manner, however, indicated danger to Lockland; for one of his companions, Frazier, at once called out to him, "Look out, Walter." Immediately following this, Cario was heard to say to Lockland, "God damn you get off that mule," and almost instantly fired at him. Lockland, who was also armed with a pistol, returned the fire; and defendant, who had gone behind the mule on which Lockland was seated, in order to get upon the other side, also shot at Lockland. Cario shot at least once more, and Lockland fell to the ground, dead. It appears that the shot fired by defendant did not hit Lockland, who was struck by two balls which came from the side where Cario was shooting. After Lockland fell, Cario and defendant went up to him. The former struck him in the face with the pistol he held, and the latter took the dead man's revolver from his grasp. After his arrest, defendant admitted that he shot once at Lockland, and said he supposed he was as "deep into it" as Cario. These are the facts as the jury were authorized to find them. It is claimed there is no evidence of a conspiracy between defendant and Cario to take Lockland's life. But we think the circumstances might well justify such a conclusion. Moreover, if there was no previous conspiracy, and if, as claimed by defendant, the meeting with Lockland was unexpected, yet, if defendant aided Cario in making a murderous assault on Lockland, he is equally guilty with his associate, although his hand did not inflict the death wound.
II. Defendant made an application for a continuance on the ground that Cario, who had fled, was an important witness in his behalf, and setting forth the facts which he expected to prove by him. It was also alleged that witnesses C. A. and C D. Morris, Washington, Frazier, Lawson, and Collins, who had testified for the state before the grand jury, were persons whose reputations for truth and veracity were bad in the community where they resided, and, if time should be granted, defendant would be able to get evidence to impeach them. Where these witnesses lived, or who the impeaching witnesses would be, are facts not stated. It was also alleged in the motion that defendant would be able to procure the testimony of certain named witnesses, who resided in the state of Arkansas, to his good character. The motion was overruled on all grounds except as to the witness Cario, and because of his absence it was sustained in so far as related to his testimony. The state admitted that Cario, if present, would testify as stated, and the case was called for trial in its order. Defendant excepted to the overruling of the motion on the other grounds. As to the impeaching testimony, the motion was too general and indefinite to comply with the...
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