State v. Sale

• Decision Date: 19 December 1902
• Citation: 92 N.W. 680,119 Iowa 1
• Parties: STATE v. SALE.
• Court: Iowa Supreme Court

119 Iowa 1

92 N.W. 680

STATE

v.SALE.

Supreme Court of Iowa.

Dec. 19, 1902.

Appeal from district court, Page county; W. R. Green, Judge.

Defendant was indicted for murder in the first degree, and, being found guilty of murder in the second degree, was sentenced to imprisonment for 14 years in the penitentiary. From this sentence, he appeals. Affirmed.W. P. Ferguson, C. S. Keenan, and Jennings & Crose, for appellant.

Chas. W. Mullan, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

McCLAIN, J.

The evidence tends to show that while defendant and one Richardson (the two having been previously well acquainted and on good terms) were, together with others, in a stall at the fair grounds in Shenandoah, remarks were addressed by Richardson to defendant charging dishonesty of the latter, to the disadvantage of the former, in connection with a game of cards on the previous evening; that the two men approached each other in a hostile attitude, and, although bystanders interposed themselves between them, Richardson struck the defendant, and defendant struck and cut, or at least attempted to cut, Richardson with a knife. The witness who testified most fully in regard to this transaction swears that, when the parties were approaching each other in the stall, defendant had an open pocketknife in his hand, and that he was attempting to make a further assault upon Richardson with this knife when he was pulled away. Both the participants in the affray then went outside of the stall, and Richardson told defendant, in threatening language, to leave; and defendant replied, in equally threatening language, that he would not do so, and that Richardson should keep away from him, or he would be hurt. Richardson then picked up a piece of two by four scantling,about five feet long, which was lying near by, and struck at defendant, hitting him twice on the head and shoulder. As to whether these blows were violent or light, the evidence is in conflict. But Richardson was, by the effort to strike the third time turned with his side toward defendant, whereupon defendant, who had been advancing, rather than retreating, stabbed him in the side with the knife which he still held in his hand; inflicting a vicious and mortal wound, of which Richardson died some days afterward. The deceased was a young and active man, while defendant, though somewhat older, was of slight build and of poor health. After the affray was over, defendant left the place, and, when told that Richardson was badly hurt, he said “he was not hurt as bad as he ought to be”; and when under arrest he said to the person who was filing the information against him, and in response to a statement that he had cut the boy pretty badly, and had probably killed him, “I ought to have killed him.”

Complaint is made of the exclusion of evidence as to the reputation for quarrelsomeness of deceased in the community where he previously resided. But the court admitted the testimony offered so far as it tended to show the general reputation only, and excluded the offer of the defendant to show by a witness particular conduct of deceased which had come within his personal knowledge. This was plainly not admissible, for the transaction referred to was at a remote time, and had no tendency to show the state of mind of the deceased at the time of the affray. Nor was there any offer to show that the previous bad conduct was known to defendant. The case before us is not similar to that of State v. Beird (decided at this term) 92 N. W. 694.

Error is assigned as to the action of the court in submitting to the jury the question as to defendant's guilt in the first degree, with which he is charged in the indictment; the contention being that there was no evidence which would support a conviction of murder in that degree, or of an assault with intent to...