State v. Schatterman

• Decision Date: 12 November 1969
• Docket Number: No. 53190,53190
• Citation: 171 N.W.2d 890
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Robert Joseph SCHATTERMAN, Appellant.

Page 890

171 N.W.2d 890

STATE of Iowa, Appellee, v. Robert Joseph SCHATTERMAN, Appellant.

No. 53190.

Supreme Court of Iowa.

Nov. 12, 1969.

Henry Wormley, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Thomas L. Moser, Larry Seckington, Asst. Attys. Gen., and Ray Fenton, County Atty., for appellee.

SNELL, Justice.

This is an appeal following judgment and sentence for second degree murder.

Defendant was indicted for murder as defined in sections 690.1 and 690.2 (first degree murder) of the 1966 Code of Iowa in that he did with malice aforethought, premeditation, deliberation and intent to kill, murder Beulah L. Schatterman, his wife.

A shot from defendant's gun killed decedent.

The defendant entered a plea of not guilty.

A jury found the defendant guilty of second degree murder as defined in section 690.3 of the Code. After the overruling of defendant's motion for new trial defendant was sentenced to imprisonment.

For the purposes of appeal the State and defendant agree as to the evidence. Most of the following statement is from appellant's brief.

Robert Joseph Schatterman and Beulah Schatterman were husband and wife and operated a tavern at 515 East Sixth Street, Des Moines, Iowa, owned by Beulah Schatterman. About one month after the parties married on October 20, 1967 they moved to one of the apartments located over the tavern. The alleged murder took place on Sunday, January 14, 1968 in the apartment occupied by the defendant and his wife. No one else was present when the shooting occurred and except for the statements of the defendant as to how and when the accident happened, the record is silent. All officers who went to the scene of the alleged crime testified that defendant was cooperative and told them the shooting was an accident. Agents for the State Bureau of Criminal Investigation identified the weapon as a .38 Caliber Rohm revolver and identified some unspent cartridges and the bullet.

A State witness, Darl Flatt, who lived in one of the apartments over the tavern, knew the deceased and her husband. Schattermans lived in the apartment above Mr. Flatt. He claimed Mrs. Schatterman had some bruises on her body and said Scotty did it, but he couldn't remember when it was. (Just who Scotty was does not appear.) On January 14, 1968, the day Mrs. Schatterman was shot, Flatt was in his apartment and heard no noise from either the tavern or his apartment. Flatt testified he didn't like the defendant. He heard no arguments between the deceased and her husband for a week or two weeks before the accident happened and heard none that day.

Defendant told Captain Leaming at the police station that he was sitting on the far end of the davenport and Mrs. Schatterman was on the other end. He said he was right handed and when he was loading the gun it accidentally discharged and Mrs. Schatterman was hit.

The deceased was wounded in the right side of the forehead and there was a defect in the left side of skull in the back. There were no powder burns in the area of the wound.

After the shooting defendant went to the tavern below and called his mother. He then went back upstairs, washed himself and his wife, and then called the police from the tavern below and informed them of the shooting. The police found decedent sitting up on the davenport covered with a yellow and white quilt.

Defendant had a permit to carry a gun and the reason given was to carry money.

Mrs. Schatterman told defendant's witness, Mrs. Henderson, that she was happy and Mr. Schatterman was good to her.

Defendant said he had the shells on the kitchen table and got them to put in the gun. When he got up from the davenport to put the gun in an ashtray to the left of his wife, it went off. He dropped the gun on the floor. He denied he fired the gun.

The deceased had no property except her furniture and clothes. The tavern was making no money and there were no insurance policies on the wife.

Defendant denied he said he was going to shoot her.

Defendant said that prior to the accident he was on the davenport to the right of the deceased. The television they were watching was cater-corner from the defendant to his right and she would be turned in that direction looking toward the kitchen.

The only evidence in the case relative to the manner in which the accident happened came from the defendant who told all the officers it was an accident. There were no eye-witnesses and the only people who were present at the time of the shooting were the defendant and the deceased. The record contains little evidence other than what defendant testified to and what he told the officers. Several police officers testified as to what they saw and what defendant said. There is no claim of coercion or violation of any of the Miranda rules. In most instances defendant testified that he could not remember making the statements.

There was testimony as to arguments between defendant and his wife; that he bragged about his ability with a gun (denied by defendant); that 'she dared me'; that decedent 'had threatened or had called a former boyfriend. He had become a little enraged and that he had yanked the phone from the box'; decedent had lived with this boyfriend for two years before her marriage to defendant. Defendant admitted that he shot his wife, but at all times claimed it was an accident.

There was evidence as to what was necessary to discharge the gun.

When defendant was a boy about 35 years ago he was convicted of statutory rape and served a year in the men's reformatory. No objection as to remoteness was made. He had been married six times before marrying decedent. He belonged to A.A., but said he and decedent had done considerable drinking prior to and on the day of the shooting.

Defendant's motions to direct a verdict and withdraw the charges of murder were overruled. The motions were renewed at the close of the case and were overruled.

Objection was made to instruction number fourteen. This presents the most serious problem on appeal.

Defendant filed a motion for new trial and urged that there was insufficient evidence to convict and that instructions were erroneous. Defendant claimed instruction number fourteen on previous conviction violated the constitutional rights of the defendant, was prejudicial and deprived the defendant of a fair trial.

I. Defendant first claims that the court erred in overruling the motions for directed verdict and for new trial in view of the evidence in the record.

We do not agree. We have repeatedly and consistently held that in considering such a claim the evidence is viewed in the light most favorable to the State. State v. Robinson, Iowa, 165 N.W.2d 802, 805; State v. Cornelius, Iowa 165 N.W.2d 810, 811; State v. Kittelson, Iowa, 164 N.W.2d 157, 161; State v. McClelland, Iowa, 164 N.W.2d 189, 197, and State v. Medina, Iowa, 165 N.W.2d 777, 781.

II. It is the function of the jury, not of the court, to decide disputed fact questions. Its finding is binding on us unless we are satisfied it is without substantial support in the evidence or clearly against the weight thereof. State v. Medina, supra, loc. cit. 781 of 165 N.W.2d, and cases cited therein.

III. Direct evidence of guilt is not required. Circumstantial evidence is sufficient if it raises a fair inference of guilt and is inconsistent with any rational hypothesis of defendant's innocence. State v. Cornelius, supra, loc. cit. 812 of 165 N.W.2d, and State v. Kittelson, supra, loc. cit. 162 of 164 N.W.2d.

IV. 'While malice aforethought is the specific state of mind necessary to convict of murder, it is far different from the specific intent which is a necessary element of murder in the first degree. It may be express or implied from the acts and concuct of defendant.' State v. Gramenz, 256 Iowa 134, 142, 126 N.W.2d 285, 290.

In the case before us there was evidence that defendant had quarreled with his wife. He had gone to the tavern for his gun. He had cleaned and loaded it.

'Premeditation and deliberation need not exist for any particular length of time previous to the killing. Use of a deadly weapon with opportunity to deliberate is evidence of malice, deliberation, premeditation and intent to kill.' State v. Kelley, 253 Iowa 1314, 1322, 115 N.W.2d 184, 189 and cases cited therein.

We find ample evidence to support the submission to the jury of the charge of murder.

V. Section 690.1, Code of Iowa, defines murder. Section 690.2 defines first degree murder and provides the punishment. Section 690.3 defines second degree murder and provides the punishment.

The trial court submitted murder in the first degree, murder in the second degree, manslaughter and not guilty.

We need not determine whether the evidence was sufficient to support a verdict of murder in the first degree. There was no such verdict. The jury found defendant guilty of murder in the second degree.

'As the court submitted to the jury the question of defendant's guilt of murder in the first degree, and as the verdict found him guilty of murder in the second degree, defendant stood acquitted of the higher degree of crime charged * * *. (T)he error complained of, if any, is now without prejudice.' State v. Davis, 209 Iowa 524, 525, 228 N.W. 37, 38.

VI. Instruction No. 18 as given by the court is a stock instruction on weight of the evidence and credibility of witnesses. It in no way mentions or singles out any witness. It is not vulnerable to attack.

VII. We quote instruction No. 14 as given by the court:

'The law gives the defendant the right to testify in his own behalf, and it is for the jury to determine the weight to be given to his testimony, as in the case of any other witness.

'In considering and weighing his testimony you are not required to receive the testimony of the defendant as true, but to give it full and careful consideration and determine whether it or any part of it is true or false, and whether such testimony is given by the defendant in...