State v. Shannon, 41091.
| Decision Date | 24 June 1932 |
| Docket Number | No. 41091.,41091. |
| Citation | 243 N.W. 507,214 Iowa 1093 |
| Parties | STATE v. SHANNON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; George W. Wood, Judge.
The defendant was convicted of the crime of murder in the second degree and appeals. Reversed.John H. Meyers, of Waterloo, for appellant.
John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and John W. Gwynne, Co. Atty., and Burr C. Towne, Asst. Co. Atty., both of Waterloo, for the State.
The crime charged was committed on the night of December 31, 1931, but the evidence does not disclose the exact hour. It appears without conflict in the evidence that Ralph Rourke, the deceased, was intoxicated during the afternoon and, to some extent at least, at the time he was shot and killed by the defendant. A short time prior to the shooting there was an altercation between the deceased and one Remington, who was also intoxicated. Remington resided a short distance from the home of the defendant. Rourke was in the company of one Roger Aldrich and, during a conversation between them and the defendant, inquiry was made as to where some liquor could be obtained. The defendant inquired as to the price the two men were accustomed to pay for alcohol, and was informed that it was $9 per gallon. The defendant then told them that he thought he could furnish them a gallon of alcohol for $9. This conversation occurred immediately in front of Remington's residence. The defendant returned to his home, and in about twenty minutes Rourke rapped on the rear door of his residence, and, when defendant responded, he was informed that the parties would take the liquor. The defendant placed a gallon can of alcohol under his left arm and took a revolver in his right hand, which he kept in his right overcoat pocket, and proceeded to deliver the liquor to the deceased. Aldrich was present but a a short distance away. Instead of accepting and paying for the liquor, Rourke approached the defendant from the rear, throwing his arms around him so as to prevent him from using his hands. The defendant continued to hold the can of liquor under his left arm and the pistol in his right hand, which was still inserted in his overcoat pocket. Aldrich took no part in the conversation or altercation, but the defendant testified that after Rourke took hold of him Aldrich advanced one step. The defendant testified that Rourke told him to drop the can or he would kill him. The defendant further testified that Rourke finally got his arms around his neck so as to partially shut off his breath, thus, to some extent, releasing the defendant's right hand. While in this position, the defendant fired the pistol over his left shoulder, apparently killing Rourke instantly. No other assault of any kind was made by Rourke upon the defendant, and Aldrich took no active part whatever in the affair. An indictment charging the defendant with the crime of murder was promptly returned by the grand jury. The defendant set up as defenses that he shot the deceased in the lawful defense of his person and property. The charge of murder in the first degree was withdrawn, and only murder in the second degree and manslaughter were submitted to the jury.
All of the propositions relied upon for reversal are based upon alleged errors in the court's charge to the jury.
[1] I. The court in paragraph 4 of its charge instructed the jury that, if it entertained a doubt as to the degree of the offense, if any, of which the defendant was guilty, that is, of murder in the second degree or manslaughter, it should return a verdict of guilty of the degree only of which they entertained no reasonable doubt as to the defendant's guilt. The exceptions to this instruction are based upon the thought that the court told the jury that the defendant must be convicted of one or other of the offenses. The court in the preceding paragraph instructed the jury that, if they failed to find the defendant guilty beyond a reasonable doubt of murder in the second degree, or manslaughter, a verdict of not guilty should be returned. The exceptions to this instruction are without merit.
[2][3] II. Proper exceptions were preserved to paragraph 13 of the court's charge to the jury. This instruction is as follows:
“The statutes of this state provide that it shall be unlawful for any person to go armed with, and have concealed upon his person, a pistol, revolver or other offensive and dangerous weapon unless a permit so to do has been granted by the sheriff. Any person violating this law shall be guilty of a felony.
If you find from the evidence, beyond a reasonable doubt, that the defendant at the time of the killing was engaged in carrying on his person a concealed weapon, and you further find that such killing was not done in lawful defense of property in his lawful possession, as defined in these instructions, nor done under sufficient provocation to reduce the offense to manslaughter, then in such case you should return a verdict of guilty of murder in the second degree.”
The justification for this instruction, if any, is to be found in the fact that the defendant armed himself with a pistol when he took a gallon can of alcohol under the left arm and proceeded to the place agreed upon for the purpose of making delivery of the alcohol to the defendant and his companion. The weapon was manifestly unlawfully in the possession of the defendant. Just what inference the jury might possibly draw from this instruction is not altogether clear. If the alleged assault made upon the defendant was of such a character as to justify the use of a deadly weapon, it was not material that the defendant was not in the rightful possession thereof. In making a proper resistance or defense to an assault being made with the intent to kill or to inflict enormous bodily injury, the person assailed may within the well-established limitations of the law use a deadly weapon, and it can make no difference that his possession thereof was felonious. This would seem to be necessarily true. Authorities upon the point are scarce indeed, but see Moore v. State, 109 Ark. 475, 160 S. W. 206. The instruction, for the reasons indicated, cannot be sustained. The court cannot say as a matter of law that it was not prejudicial.
III. Perhaps the most important question presented on this appeal involves instruction 23, which is as follows:
“As to the sufficient resistance that one may make in the defense of property lawfully in his possession, you are instructed that in defense of property lawfully in his possession the defendant is warranted in making such defense as a reasonable man would make under similar circumstances, as you have been hereinbefore instructed.
As to a defense of such property as the intoxicating liquor which was in the possession of the defendant, you are instructed that it is the law of this state, that no one shall have possession of or transport intoxicating liquor, except under the provisions of the chapters relating to licensed pharmacists as permit holders, and relating to sacramental wines. The law further provides that any person who shall keep or carry around on his person any intoxicating liquor, with intent to sell or dispose of the same by gift or otherwise, shall be termed a bootlegger and shall be punished, and that the possession of liquor in violation of law would not be the lawful possession of property.”
The proposition here presented is not only somewhat novel, but is one which must largely be decided without the aid of direct authority. It was the claim of the defendant that his assailant was attempting to forcibly and with violence deprive him of the gallon can of alcohol. No doubt, the possession of the intoxicating liquor upon the record before us was in violation of the prohibitory law. The right to the defense of the person and property is conferred in this state by statute as follows:
Sec. 12921, Code 1931. “Lawful resistance to the commission of a public offense may be made by the party about to be injured, or by others.”
Sec. 12922. “Resistance sufficient to prevent the offense may be made by the party about to be injured:
“1. To prevent an offense against his person.
2. To prevent an illegal attempt by force to take or injure property in his lawful possession.”
Sec. 12923. “Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the same.”
[4] It will be observed that subdivision 2 of section 12922 of the foregoing statute specifically authorizes a person in the lawful possession of property to resist by force an illegal attempt by another to take the same from his possession or to injure such property. The so-called Volstead Act (27 USCA) provides that no property rights shall exist in intoxicating liquor illegally possessed. Prior to the enactment of this law by the Congress...
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State v. Parker
...of the case to the jury. The requested instruction was not justified under the facts and circumstances here. See State v. Shannon, 214 Iowa 1093, 1099--1100, 243 N.W. 507; State v. Borwick, 193 Iowa 639, 647, 187 N.W. V. The trial court instructed the jury: 'The law does not require the Sta......