State v. Powell

• Citation: 24 N.W.2d 769,237 Iowa 1227
• Decision Date: 12 November 1946
• Docket Number: 46794.
• Parties: STATE v. POWELL.
• Court: United States State Supreme Court of Iowa

24 N.W.2d 769

237 Iowa 1227

STATE v. POWELL.

No. 46794.

Supreme Court of Iowa

November 12, 1946

[Copyrighted Material Omitted]

C I. McNutt and B. J. Connolly, both of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Leon N. Miller, Co. Atty., and N. D. Shinn, special counsel, both of Knoxville, for appellee.

MULRONEY Justice.

During the early evening of April 28, 1945, Mike Slykhuis was mortally wounded by the pistol fire of his stepfather-in-law, Marion Powell. He died the next day and Powell was indicted and tried for murder. He was convicted of murder in the first degree and sentenced to life imprisonment. In his appeal he challenges the sufficiency of the evidence to sustain the verdict, so we will first examine that evidence to see if it supports the verdict.

Mike Slykhuis was about 30 years old. He and his wife, Sylvia, lived on a farm near Knoxville, Iowa. Sometime before April 28, 1945, Sylvia wrote to her mother, Mrs. Powell, in Des Moines, inviting her and her stepfather down for a weekend visit at the farm. They arrived about three o'clock on the afternoon of April 28th and Mr. Powell sat around the house, playing with the Slykhuis children, until Mike came in from the field about five o'clock. Mike and Mr. Powell visited for awhile over a glass or two of wine and the conversation turned to coon dogs. Both men were coon hunters and Mike told Powell of some coon dogs in town that he might like. After about half an hour they drove to Knoxville where Powell purchased a coon dog and while in Knoxville they went to a pool hall where Powell purchased a glass of beer for himself and a bottle of coke or pop for Mike. They also purchased some meat and then went to the liquor store where Powell purchased some wine and a fifth of whiskey and Mike purchased a bottle of some peppermint flavored liquor. While in the liquor store, some of the customers noticed that Powell had a gun strapped on his belt and one of the clerks asked him about the gun and Powell said he used it for coon hunting and to train dogs. They arrived back at the farm about 7 o'clock but before they went into the house they saw a car drive into the driveway and Mike noticed it was his uncle, Ike Slykhuis. There was some conversation with Ike concerning a cattle trade and the men walked to where the cattle were to look them over and they finally arrived back at the place where the two cars were parked. They visited while standing beside Powell's car, which was parked about 50 feet from the house, and Powell suggested they get in the car and sit down. They got in the car, a two-door Plymouth sedan, with Powell under the steering wheel and Ike in the right front seat and Mike in the back seat. Soon the liquor was opened and the wine and the peppermint flavored liquor were passed back and forth among the men. They sat in the car about an hour and Ike made some remark about his sexual relations with a former wife of Powell's and also some remark about his sexual relations with Powell's present wife. An altercation ensued and Powell got out of the car on the left-hand side and Ike got out on the right side and ran around the rear of the car to where Powell was standing, and Mike got out on the right side and passed around the front of the car. Powell drew his gun and fired, first at Ike as he came around from the rear of the car and then at Mike as he came around from the front of the car. Both men were fatally wounded, Ike dying that evening, and Mike the next noon.

Sylvia testified that she went to the car while the men were sitting in it to call her husband and stepfather to come to supper and that her mother went out to talk to them. Just before the shooting she heard loud voices coming from the car and she and her mother started out again but she ran back to get a flash light. She stated she heard the first shot about the time she picked up the flash light, which was on the dining room buffet, and the second shot about when she reached the kitchen door. When she got outside, she found her husband lying 'about one-half or one-fourth of the way to the house.' He was unconscious. Ike was lying on the ground beside the car, groaning and saying he was shot. Powell was standing near a little chicken house. She ran to a neighbor screaming for help and then returned and in a moment or two Mike recovered consciousness, and she testified: '* * * he begged me to get his gun. I asked Mr. Powell why he always had the gun for, and he said he had it for his own protection. Mother went over to Mr. Powell to take the gun from him and he says here, take it, and mother took it. Mr. Powell didn't say anything about the gun. When Mike started begging me to go get him his gun Mr. Powell asked mother to get his gun for him. Mother gave Mr. Powell's gun to him, and Powell didn't say anything. Then Mr. Powell put his gun away and Mike started talking. Mr. Powell was standing by the chicken house nearly all the time. Mike said he certainly would like to have some of that steak. I told him he couldn't leave me because I couldn't get along without him. He told me to take care of the children. Mr. Powell was standing beside the chicken house.

'Very soon Mr. Powell walked over to Mike and started talking to him. He says well, Mike, I am sorry. I love you. Mike told him he didn't love him or he wouldn't be such a dirty coward. Mike told him what Uncle Ike heard. He said he was talking to Mr. Powell. Mike told Mr. Powell to leave him alone, and Mr. Powell walked away from him. * * *

'I was present when the sheriff put the handcuffs on Powell. Powell said he had no gun. Then I showed the sheriff where the gun was and my mother went over and got it for the sheriff. They got it from the little chicken house. They took Mr. Powell away when the doctor was working on my husband outside of the house. * * *

'The gun Mr. Powell had is a gun that he always had with him. My husband, Mike, had one exactly like it. They both used the guns for coon hunting and target practice. I heard no trouble between Ike or Mike and Mr. Powell prior to the time I heard the loud voices.'

The neighbor summoned by Sylvia's screams telephoned the doctor, and the doctor, the sheriff and the deputy sheriff arrived about 9:30. Powell was taken to the sheriff's office and Mike was taken to the hospital in an ambulance. Ike was then dead. The doctor rode in the ambulance with Mike and he was interrogated as to Mike's statements on this trip as follows:

'Q. Did the patient, Mike Slyhuis, say anything to you at that time about going to die? A. Yes, sir, yes, sir.

'Q. What did he say, doctor? A. He said he was going to die.

'Q. Was that or was that not on the way in to Knoxville? A. That was on the way to Knoxville, yes, sir.

'Q. Did he talk any more on the way into town at that time? A. Yes.

'Q. What did he say, if you recall what he said, or the substance thereof?

'Mr. McNutt: Objected to as calling for hearsay, and without proper foundation.

'The Court: I can't tell yet whether it is or not. I think proper foundation has been laid. (To which the defendant excepts).

'Mr. McNutt: The question was, Your Honor, what did he say, as I understood it.

'Q. I will withdraw the question. I will ask you this, doctor, if the patient Mike Slyhuis, after he said he was going to die, did he say anything to you that evening about what took place or happened out at the Mike Slyhuis home? A. He did.

'Q. What did he say?

'Mr. McNutt: The same objection as last.

'The Court: Overruled. Exception.

'A. He said it was all uncalled for.

'Q. Did he say it was all uncalled for coming in in the ambulance, or was that out there or at the hospital? A. That was coming in the ambulance.

'Q. In the ambulance? A. Yes, sir.

'Q. Was there anything else said as to what happened out there other than what you have already testified to? A. He said he didn't understand why he shot him.

'Mr. McNutt: Just a moment. The same objection as last urged.

'The Court: Overruled. Exception.

'Q. And that last quotation that he said was said after he told you he was going to die, is that right? A. Yes, sir.

'Q. What else did he say, if anything? A. Well, he told me to take care of his family, do the best I could for them.'

At the conclusion of the doctor's cross-examination defense counsel moved to strike his testimony as to his conversation with Mike on the ground that Mike's statements were not statements of fact but conclusion, and the testimony was incompetent, irrelevant, and immaterial.

Much of the state's testimony consists of statements made by Powell in the sheriff's office that night, when he was interrogated by the county attorney in the presence of the sheriff of Marion County and the chief of police and city marshal of Knoxville. The officers testified the county attorney advised Powell of his rights and told him that he did not need to answer any questions and warned him that anything he said might be used against him and advised him that he had a right to an attorney and as the chief of police testified: 'Mr. Powell told Mr. Miller (the county attorney) that he would answer the questions if he could.' The officers testified that when questioned in the sheriff's office Powell stated Mike had whispered to him when they were all sitting in the car: 'let's get Uncle Ike drunk' but that he didn't want to do that. The officers testified Powell also stated that everything was friendly up until Ike made the remarks about his sexual intercourse with Powell's first wife and present wife. And Powell stated these remarks were followed by Ike 'cussing' him and telling him he could whip him. The officers testified Powell stated he then got out of the car and stood...