State v. Scott
| Decision Date | 14 November 1922 |
| Docket Number | 34256 |
| Citation | 190 N.W. 370,194 Iowa 777 |
| Parties | STATE OF IOWA, Appellee, v. ROBERT LEE SCOTT, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--C. W. VERMILION, Judge.
UPON an indictment for murder, the defendant was convicted of manslaughter, for the killing of one Harry Skinner. From the judgment of conviction he has appealed.
Reversed.
Work Lewis & Work and Starr & Jordan, for appellant.
Ben J Gibson, Attorney General, John Fletcher, Assistant Attorney General, R. H. Munro, County Attorney, and Joe R. Jaques, for appellee.
I.
The deceased, Harry Skinner, was killed on the evening of December 9, 1920, as the result of an altercation between him and the defendant, in the defendant's store at Linby, Jefferson County. Skinner died as the result of a wound inflicted upon him by the single thrust of a cheese knife, in the hands of the defendant. Before inflicting the wound, the defendant had been twice shot by Skinner: one bullet entering his left arm, and the other entering his body at a point one inch below the left nipple. The deflection of the bullet by the striking of a rib prevented it from entering the heart cavity. Skinner was a man 31 years of age, 5 feet 11 inches tall, and weighing 175 pounds. The defendant was shorter in stature and lighter in weight, and was 57 years of age. A few months before, he had submitted to a surgical operation for the removal of one eye. This had caused him considerable disability for many weeks. He also suffered from heart trouble in some degree. The evidence is quite undisputed that Skinner "carried a gun" ostentatiously, and was a quarrelsome bully. Nevertheless, he and Scott had been personally acquainted for many years, and had at all times maintained friendly relations, up to the moment of the altercation. Skinner owed Scott a small account. He had received a request for payment. Responding thereto, he came to the defendant's place of business, which was a store and post office. He claimed a discrepancy of a few cents in the statement of the account, which the defendant purported to explain. Skinner said: "You are a God damn liar." Hereupon, the defendant ordered him out of the store. At that time, the store counter separated the parties. The defendant reinforced his order by going around the end of the counter and approaching Skinner. Skinner responded with his "gun," and discharged two bullets into the person of the defendant. The grapple of the parties followed. The defendant claims that that was the only method open to him, to protect himself against further discharge of the revolver. This weapon was a 32-caliber magazine automatic revolver. After two shots were fired, it "jammed," and failed to discharge the third cartridge. This rendered it useless, for the time being. This fact, however, was not known to the defendant. He believed that he had received three bullets in his person, and claims that he was fighting for his life. That the defendant grappled with Skinner at the time of the shooting, is undisputed. The entrance to the defendant's store was at its south end. The building stood north and south. The store room contained counters, one on the east side and one on the west. Between the counters was a space of 8 feet, extending the length of the store. When the altercation began, the defendant was behind the east counter, at a distance about midway between the two ends. To come from behind the counter, he passed through an opening therein, which opening was a few feet north from where he at first stood. He then faced south toward Skinner. In their grappling, the combatants moved southerly in the direction of the entrance or exit, and were within 10 or 12 feet thereof. They were at this point when the revolver became useless. After the defendant was shot, the grapple continued. The defendant claims that Skinner held him by the throat. From that time, they moved northerly in the struggle, for a distance of about 30 feet. At this point, they were in close proximity to the cheese case and the cheese knife. This was the knife with which the fatal thrust was made. It is the claim for the State that the defendant had possessed himself of this knife at the time of his first advancing upon Skinner; whereas the defendant claims that he did not have the knife in his hand until he came to its proximity in the struggle. The outer wound upon Skinner's body was a cut 2 inches in length. The knife was buried therein to the hilt. The blade was about 11 inches in length. At a point in near proximity to the cheese case, and after the infliction of the wound, the combatants both fell to the floor, exhausted. A doctor was called by a bystander. Thirty feet farther south upon the floor was Skinner's revolver. Its condition indicated that a third shot had been attempted, and that it was prevented by the jamming of the cartridge. Skinner died within 15 minutes. The beginning of the altercation was witnessed by 5 bystanders. Several of these, and perhaps all of them, ran away, for their own protection, when the shooting began. All of these were witnesses for the State. The evidence is not greatly in dispute, except as to one very important fact. It was incumbent upon the State to prove that the defendant was not acting in lawful self-defense. The theory of the State is that the defendant armed himself with the knife when he made his first advance upon Skinner. There is no direct evidence in support of this particular claim. The defendant, as a witness, denied it, and testified that he first obtained the knife from the east counter, north of the opening, when the combatants, in their struggle, came to that point. At the time of defendant's first advance, three of the State's witnesses sat upon the west counter, just opposite the opening of the east counter through which the defendant came. Two others of the State's witnesses were near by. None of them saw any weapon in the defendant's hand at that time. Some of them testified that they saw him reach for something at the base of the shelving. These witnesses were on the right-hand side of Scott, as he passed down toward Skinner, and were within 3 or 4 feet of him. The question of fact here presented was the turning point in the case, so far as the jury issue was concerned. The trial court instructed the jury that the defendant had a right to order Skinner out of his store, and had a right to use such force as was reasonably necessary to put him out, if he otherwise refused. This was correct. It was incumbent upon the State, therefore, to show something more than that the defendant approached Skinner unarmed, while he ordered him out of the store. Such an approach did not justify the use of firearms by Skinner. Nor did it deprive the defendant of the right thereafter to make lawful self-defense against the use of firearms by Skinner. Skinner was near the exit. There was no obstruction between him and it. The witnesses for the State testified that the shooting occurred when the defendant was a few feet distant from Skinner. The actual grapple of the parties occurred afterward. The defendant testified that he grappled Skinner to prevent further shooting. If it be true, therefore, that the defendant approached Skinner unarmed, his right to defend himself against an attempted shooting was undoubted, and he had a right to resort to extreme measures to that end. In order for the jury to find that defendant was not acting in lawful self-defense, it must have found that the defendant had armed himself with the knife in his first approach upon Skinner. This conclusion on the part of the jury must have been drawn from the circumstances disclosed in the evidence. No witness testified to the fact directly. On this question of the possession of the knife, and when the defendant obtained it, whether it can be said, upon this record, that the circumstances are less consistent with the testimony of the defendant than with the theory and claim of the State, is, to our minds, a very close question.
II. We have given the foregoing outline of the evidence, as a basis for the consideration of particular errors assigned by appellant. These alleged errors go to the proposition that by reason of certain incidents which occurred in the cross-examination of the...
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