State v. Phillips

Decision Date20 December 1902
Citation92 N.W. 876,118 Iowa 660
PartiesTHE STATE OF IOWA, Appellee, v. ALBERT G. PHILLIPS AND LEWIS BROOKS, Appellants
CourtIowa Supreme Court

Appeal from Buena Vista District Court.--HON. A. D BAILIE, Judge.

INDICTMENT for murder. Verdict of guilty, with death penalty, and from judgment entered thereon defendants appeal.

Reversed.

F. F Faville for appellant Phillips. F. H. Chapman for appellant Brooks.

C. W Mullan Attorney General, C. A. Van Vleck, Assistant Attorney General, H. F. Schultz, County Attorney, and F. H. Helsell for the State.

WEAVER J. DEEMER, J. (dissenting).

OPINION

WEAVER, J.

Albert City is an incorporated town situated in the eastern part of Buena Vista county, Iowa. Between two and three o'clock in the afternoon of the 16th day of November, 1901, one Gillium, a druggist doing business in said town, received a message by telephone from some person whose identity is not disclosed in the record, but supposed to have been speaking from the town of Sioux Rapids, to the effect that on the night previous a bank at the town of Greenville, in Clay county, had been burglarized, and that three persons suspected to have been connected with that offense had been seen moving in the direction of Albert City. Gillium soon met one Lodine, a drayman, who was also marshal of the town, gave him the substance of the message he claimed to have received, and told him to look out for and arrest the three men, describing them as two white men and a mulatto, or two white men and a negro; the exact phrase employed being in some doubt. Later in the afternoon Lodine reported to Gillium the presence of three men, whom he believed to be the persons wanted, in the waiting room of the railroad station a block or two distant. Gillium thereupon made an errand to the station, saw the men, and, coming back to his store, told Lodine he believed them to be the parties whose arrest was desired. A party was then organized to effect the capture, consisting of Lodine, Gillium, John Sundblad, M. H. Conlin, A. Gulbranson, Dr. Knee, Mr. Shob, and others. Lodine was armed, with a repeating rifle, Sundblad with a repeating shotgun, and Gillium and Gulbranson with revolvers. Whether others carried weapons, and, if so, the character of them is not clear. Proceeding to the station, the marshal and his party crowded through the door of the waiting room in a body as nearly as possible, with weapons in hand ready for instant use. As they entered they advanced in the direction of the suspected men,--being the appellants, and one Dolan, who was killed later in the fray,--the marshal calling out, "Hands up Hands up " Some of the witnesses also say he added to this command the words, "We want you." Defendants and Dolan immediately drew revolvers, and numerous shots were exchanged, though the testimony tends to show that one of the defendants or Dolan was first to discharge his weapon. The marshal and his party soon retreated, taking up various positions where they could command the door and windows of the waiting room, Sundblad running across the railroad track and taking his stand behind a freight car. From these positions shots were fired into the waiting room, and at intervals defendants and Dolan came to the door and fired at the posse. One of the shots so fired it is alleged inflicted upon Sundblad a wound of which he died a day or two later. Finally the besieged party emerged from the station, and sought to escape into the country. In this movement Dolan received a fatal shot from one of the posse. The defendants continued the retreat, closely followed by their pursuers, and after a running fight of several miles were captured. The indictment in this case was returned November 22, 1901, and the trial was had five days later.

I. Appellants contend that the indictment was insufficient for the reason that (1) it does not designate or charge in specific words the crime of murder in the first degree; (2) it does not allege facts constituting murder in the first degree; (3) it is bad for duplicity.

We do not think that the statute requires that an indictment for murder shall name in so many words the degree of the crime charged. Code, section 5281, designates the form of indictment which must be substantially followed in all cases, and provides that at the proper place the name of the offense, if it have any, shall be inserted. This, we think, is fully observed in the indictment before us, which accuses the defendants "of the crime of murder." There is, under our law, but one crime called murder. The so-called degrees of this offense do not constitute distinct crimes, but gradations of the same crime, devised for the purpose of permitting punishment to be varied according to the circumstances of greater or less enormity characterizing the criminal act. When, therefore, the indictment formally charges the defendants with the crime of murder generally, the requirements of the statute in this respect are met, and we must look to the facts set forth in the body of the instrument to ascertain the degree of the crime for which the accused may lawfully be placed upon trial. State v. Jones, 1 Houst. Crim. Rep. 21; 21 Am. & Eng. Enc. Law, 156.

The objection that the indictment does not state facts constituting murder in the first degree is not well taken. After stating the name and date of the offense, the allegation is that the defendant, in and upon the body of one John Sundblad, "willfully, feloniously, deliberately, premeditatedly, and with malice aforethought did commit an assault with deadly weapons, being revolvers then and there held in the hands of the said Albert G. Phillips and Lewis Brooks, and loaded and charged with loaded cartridges, and then and there the said Albert G. Phillips and Lewis Brooks did, with the specific intent to kill and murder the said John Sundblad, willfully, feloniously, deliberately, premeditatedly, and with malice aforethought shoot off and discharge the contents of said deadly weapons at, against, and into the body of the said John Sundblad, thereby wrongfully, feloniously, deliberately, premeditatedly, and with malice aforethought inflicting upon the body of the said John Sundblad a mortal wound, of which said mortal wounds the said John Sundblad * * * died."

The point made is that, while charging the defendants with having inflicted a mortal wound willfully, feloniously, deliberately, and premeditatedly, it does not charge that the murder was so committed. But, except for the obscurity arising from the formal and technical mode of expression made use of in the indictment, it would be difficult to charge murder in the first degree in apter language than is here employed. Murder in the first degree is the willful, deliberate, and premeditated killing of a human being with malice aforethought. Each of the elements of this definition is contained in the charge made against the defendants, both as to the assault and to the infliction of the mortal wounds.

It is also charged that the wounds were inflicted by defendants with the specific intent to kill, and if the wound was inflicted with intent to kill, and death resulted from it, the killing was willful; and if, as charged, it was inflicted deliberately, premeditatedly, with such intent and with malice, then the killing was also deliberate and premeditated. State v. Shelton, 64 Iowa 333, 20 N.W. 459. There was no error, therefore, in the holding of the district court that the indictment charged the crime of murder in the first degree.

The further objection, that the indictment is bad for duplicity, is without merit. It is true that in charging the assault but one mortal wound is described, and it is also true that Sundblad is thereafter alleged to have died "of said mortal wounds," using the word in the plural instead of the singular form. This change in the form of the word is plainly a mere slip of the pen. The expression "said mortal wounds" is to be referred to the wound which had thereinbefore been specifically described. No other interpretation can be fairly placed upon it.

II. Evidence was admitted tending to show that after the wounding of Sundblad the defendants undertook to escape, and were closely followed and captured, as noted in the statement of the case. The state's witnesses were permitted to describe the incidents of this pursuit, including the interchange of shots between the parties, the seizure of one or more teams by defendants to aid them in their flight, and their final surrender. The admission of this testimony is assigned as error. The exciting episode in which Sundblad lost his life, beginning with the advance of the posse upon the defendants in the railway station and ending with the surrender of the latter several miles distant, was all one transaction, or perhaps more accurately stated, one unbroken series of transactions, so closely connected and related that they were clearly admissible as a part of the res gestae. The same may also be said with even stronger reason as to the evidence concerning the killing of Dolan and wounding of Lodine in the melee at or near the railroad station, which was admitted over defendant's objection. Nor do we think there was any error in permitting witnesses to testify as to the money, weapons, and other articles found on the persons of the defendants at the time of their arrest. The justification for the attempt to make the arrest was the belief or suspicion that these men had been engaged in a recent bank robbery, and anything tending to disclose their connection with that offense was material to the inquiry.

III. A much more serious objection is raised to the use in testimony of a bottle supposed to contain nitroglycerine, and said to have been found on the person of one...

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