State v. Sedig

• Decision Date: 14 November 1944
• Docket Number: 46503.
• Citation: 16 N.W.2d 247,235 Iowa 609
• Parties: STATE v. SEDIG.
• Court: Iowa Supreme Court

16 N.W.2d 247

235 Iowa 609

STATE v. SEDIG.

No. 46503.

Supreme Court of Iowa

November 14, 1944

Rehearing Denied Jan. 13, 1945.

Marjorie Welch, William P. Welch, and Roy E Havens, all of Logan, for appellant.

John M. Rankin, Atty. Gen., and Wm. F. McFarlin, Asst. Atty. Gen for appellee.

GARFIELD Justice.

It is admitted that defendant shot Argo Olson with a .22 caliber rifle late in the afternoon of October 1, 1943. Death followed within about an hour. Defendant, who is the only living witness to the shooting, claims he shot in self-defense and that the evidence is insufficient to prove the killing was not justifiable. In Iowa the rule is that the State must prove beyond a reasonable doubt that accused did not act in self-defense. State v. Twine, 211 Iowa 450, 460 233 N.W. 476; State v. Burzette, 208 Iowa 818, 828, 222 N.W. 394; State v. Partipilo, 139 Iowa 474, 116 N.W. 1049.

Defendant is a farmer for whom decedent worked. They were of about the same weight but defendant was taller than Olson. On the morning of September 30, 1943, the two drove from defendant's farm to the town of Whiting, where Olson lived, to have a plow shaft straightened. They spent the afternoon drinking beer in a tavern. About 8 o'clock the following morning defendant returned to Whiting from his farm 7 miles distant, to get Olson. The two spent the day drinking beer in taverns. Olson also drank some whiskey in the afternoon. A witness for defendant who drank beer with them for several hours testifies that both defendant and Olson were intoxicated when the witness left them at 3:30.

A little before 5 defendant, with Olson driving, left Whiting in defendant's car for his farm. After they had driven 3 to 4 miles Olson stopped the car and put together a rifle that was lying in the back of the automobile, saying: 'I am going to get a bird (meaning a pheasant) before I get home.' Olson then put the butt of the rifle on the floor of the car with the barrel resting between him and his employer, and they continued their journey. Defendant testifies that Olson had been taking the rifle on the tractor when he plowed so he could shoot game and that Olson put the rifle in the car the day before when they started for Whiting with the bent plow shaft.

They drove 5 miles west of Whiting to the end of the road, then north a half mile to defendant's mailbox. After the mail was gotten, instead of continuing on to the Sedig farm, the car was turned around and driven south back to the road into Whiting. Defendant's testimony is that he wanted to go home but Olson insisted on returning to Whiting for more beer. The car was turned east on the Whiting road and brought to a stop about 60 feet east of the corner. This is where the shooting occurred. Defendant's testimony is that just before they turned the corner Olson called him a vile and profane name and repeatedly threatened to kill him. Up to then there had been no quarrel, although defendant says he wanted to get home to do plowing and during the day had been urging Olson to go to the farm but Olson finally said, 'To hell with that plowing,' and was determined to drink more beer.

When the car was stopped, according to defendant, Olson got out, walked around the car, grabbed defendant by his shirt collar, struck him on the mouth with his fist and pulled him out of the car. Defendant says he pulled Olson to the back end of the car where Olson struck him again, knocked him down, beat him in the back of his head, rubbed his face in the gravel and kicked him twice in the side of the body. Olson then said, according to defendant: 'I want to go and get my car and if you have made a move when I come back I will still kill you.' Olson's car was at the Sedig farm some two miles from the scene of the affray. Defendant says he got to his feet in a few minutes, thinking Olson had gone, but that he reappeared and beat him again, knocking him to the ground stunned.

Defendant testifies he then got up, went to the side of the car and 'opened the car door with the intentions of getting in and getting it started;' while he was feeling on the floor of the car for a saw blade that was used for an ignition key, his hand came against the rifle. About then he says Olson again threatened to kill him; he, defendant, grabbed the rifle; Olson threatened he would get it and kill him; defendant asked Olson several times to stay back but he kept on coming and defendant pumped the gun and fired it eight times until the gun was empty; defendant was backing up to the east a step or two each time he fired and Olson was advancing toward him from the northwest. After the eight shots were fired, five of which struck Olson, the latter went south into the cornfield adjoining the road on the south and disappeared; defendant then got in his car, drove some two miles northwest to get his brother and then drove back into Whiting where he told the mayor he had shot a man and didn't know whether he had killed him. The mayor called the sheriff and defendant was placed under arrest.

The State contends there is sufficient circumstantial evidence to prove that defendant did not kill Olson in self-defense. Eight discharged cartridges were found in the road from a point to the west at the extreme south edge of the graveled part of the road to a point about 25 feet to the northeast near the north side of the road; a trail of blood was found in the cornfield south of the road from a point slightly west of the west cartridge; this trail led back into the cornfield nearly 100 feet to a place where several cornstalks had been knocked down; at this spot there was much more blood than at any other spot; from this spot, traces of blood were found for 400 feet to the northeast leading to the home of a Mrs. Jett where Olson went, lay on the floor and died a few minutes after a doctor arrived.

Defendant testifies more than once that all the shots were fired in a northwesterly direction, that decedent was advancing toward him during the shooting and that he did not shoot Olson in the back. There is substantial evidence to the contrary, inconsistent with the claim of self-defense.

Two of the five bullets that struck Olson entered his body in the back, one about 1 1/2 inches to the right of the spine, the other about 3 inches to the left of the spine. A third bullet entered the rear of the left side of the body. A fourth bullet pierced the left hand, causing only a superficial wound. The fifth bullet entered the right upper arm and lodged in the bone. No bullets entered the front of Olson's body.

The location of these entrance wounds definitely appears not only from the testimony of the coroner but from several photographs of the dead man's body. The testimony of the coroner, a physician, is that either of the two shots in the back very likely caused death. The location of the wounds in the back is evidence that Olson was moving away from defendant, his back turned toward him, when those shots were fired.

Forty-two feet south of the road, in the tenth row of corn, a cornstalk was found with a freshly made hole from a .22 caliber bullet which had entered from the north 4 feet 3 inches above the ground. This cornstalk, which was received as an exhibit, was between the cartridges in the road and the place in the cornfield where there was most blood. This is mute testimony that defendant fired to the south while Olson was attempting to retreat through the cornfield and not, as claimed by defendant, while Olson was advancing toward defendant from the northwest.

There is testimony that when the sheriff arrived in Whiting at the mayor's place of business following the shooting, defendant said he was 'in a hell of a mess' and upon being told by the sheriff that he had killed a man responded, 'What would you do if a fellow rubbed your nose in the ground?'

Defendant testifies that he did not strike decedent at any time. The funeral director testifies, however, there were bruises on decedent's forehead, the side of his face and cheek and there were no bruises or abrasions on his hands or knuckles. A photograph of decedent's body shows bruises on his face.

Defendant testifies that when he and Olson arrived at the mailbox, shortly before the affray, Olson was driving and turned the car around while defendant got out to get his mail. A neighbor lady, however, apparently disinterested, says she saw them at the time, that Olson got out of the car and went to the mailbox and that defendant was driving the car when it was turned around and headed south toward the scene of the shooting.

I. There are four recognized elements of self-defense in justification for a homicide: (1) The slayer must not be the aggressor in provoking or continuing the difficulty that results in the killing. (2) As a general rule he must retreat as far as he reasonably and safely can before taking his adversary's life. (3) He must actually and honestly believe he is in imminent danger of death, great bodily harm, or some felony, and that it is necessary to kill in order to save himself therefrom. (4) He must have reasonable grounds for such belief. State v. Johnson, 223 Iowa 962, 967, 274 N.W. 41; 40 C.J.S., Homicide, § 114, p. 984; 26 Am.Jur. 242, section 126. We think the evidence presents a jury question on the existence of at least some of these elements, that the issue of self-defense was for the jury and that we should not interfere.

The jury was not bound to believe defendant's testimony. In weighing it, the jury could properly consider his interest in the outcome of the trial and the fact he is the only living witness to the shooting. State v. Twine, 211 Iowa 450, 460 233 N.W. 476; 41 C.J.S., Homicide, § 326 p. 54. Necessarily the only means of refuting this defendant's testimony as...