State v. Reed
Decision Date | 13 December 1927 |
Docket Number | 38197 |
Citation | 216 N.W. 759,205 Iowa 858 |
Parties | STATE OF IOWA, Appellee, v. ERNEST REED, Appellant |
Court | Iowa Supreme Court |
REHEARING DENIED MARCH 17, 1928.
Appeal from Harrison District Court.--H. J. MANTZ, Judge.
Defendant was indicted for murder in the first degree, convicted of murder in the second degree, and appeals. The case was here on appeal from a former conviction of murder in the first degree. State v. Reed, 201 Iowa 1352.
Affirmed.
R. J Organ and William P. Welch, for appellant.
John Fletcher, Attorney-general, and Roy Havens, County Attorney for appellee.
MORLING, J. EVANS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur.
I.
Defendant's main reliance is on the overruling of his challenge to two jurors for cause, in that they had formed disqualifying opinions. The jurors were excused on peremptory challenges, all of which were exhausted. The one whose opinion appears to have been most pronounced testified that he had formed an opinion on the assumption that what he had heard and read was true; that his opinion was qualified; that he would lay it aside, and expected to lay it aside, when he got evidence to change it, but not until then. He testified that he could decide the case solely upon the evidence and the court's instructions, lay aside all that he had heard, and would disregard any opinion which he had formed. The cause for challenge in this regard is:
The trial court was the trier of fact on the question of the existence of this ground of challenge. He must be, and is, invested with discretion in passing upon the question of disqualification for such reason. The testimony here is quite different than that presented in the former appeal, 201 Iowa 1352. There, the juror testified that he did not think that he could enter the trial of the case, knowing what he did about it, and still give the benefit of the presumption of innocence to the defendant. The court was within his province in overruling the challenge, and we ought not to interfere with his action. State v. Teale, 154 Iowa 677, 135 N.W. 408; State v. Krampe, 161 Iowa 48, 52, 140 N.W. 898; State v. Hassan, 149 Iowa 518, 128 N.W. 960; State v. Harding, 205 Iowa 853, 216 N.W. 756.
II. Defendant urges that there is no evidence of malice, deliberation, or premeditation, and that the charge of murder, whether first or second degree, should have been withdrawn from the consideration of the jury. Harry Reel was a special police officer, on duty at the fairgrounds in fair time. It is not disputed that the defendant fired three shots at him while so on duty, thereby killing him. Defendant had entered the fairgrounds by climbing over the fence. He was apprehended by deceased, and escorted back to the fence. After leaving defendant there, deceased took up his station some distance away. The testimony as to what happened from that time on is in irreconcilable conflict. There is evidence to the effect that defendant left the grounds by jumping over the fence, and later re-entered in the same manner. It does appear, without dispute, that, just before the shooting, defendant and another officer, Swanger, were having a conversation at the fence. Swanger testifies that he advised defendant to get a ticket, or to wait until 8:30, when he could enter without one. During this conversation, deceased approached, and directed defendant to leave. One witness testifies that defendant said, "'You don't want to get hard with me,' and Reel said, 'You go on and go away from here, and stay out, and there won't be nothing hard about it.'"
(using an opprobrious epithet).
There is testimony that deceased then reached over the fence and struck defendant with his hand. There is also testimony from which the contrary might he found. There is testimony that immediately upon being struck, defendant fired the fatal shots. There is also testimony that defendant said to deceased, if he wanted to fight, to come out in...
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