State v. Shipley

• Decision Date: 15 November 1966
• Docket Number: No. 51957,51957
• Citation: 146 N.W.2d 266,259 Iowa 952
• Parties: STATE of Iowa, Appellee, v. Arlene Violet SHIPLEY, Appellant.
• Court: Iowa Supreme Court

Page 266

146 N.W.2d 266

259 Iowa 952

STATE of Iowa, Appellee, v. Arlene Violet SHIPLEY, Appellant.

No. 51957.

Supreme Court of Iowa.

Nov. 15, 1966.

Sidney C. Levine, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Ray Fenton, Des Moines, County Atty., for appellee.

MOORE, Justice.

On May 19, 1965 defendant, Arlene Violet Shipley, was indicted in Polk County charged with murder as defined in sections 690.1 and 690.2, Code 1962, to which she entered a plea of not guilty. On trial the jury returned a verdict finding her guilty of the included offense of manslaughter. June 21, 1965 the trial court sentenced her to be confined in the women's reformatory for a period not to exceed eight years and fined her $50. Defendant has appealed. We affirm.

Appellant asserts the trial court erred in failing to instruct on her theory that her shooting of Ralph Stewart was an accident and the instructions on implied malice, defendant's credibility and reasonable doubt were erroneous.

It is not contended, nor could it well be argued, that the verdict of guilty is without sufficient support in the evidence. Very little conflict appears therein. We shall not, therefore, attempt to rehearse the testimony in great detail. For many months prior to April 11, 1965 defendant and Ralph Stewart lived together without any pretense of being married. Stewart was married to another woman. He worked at a packing house during the week and with defendant's help did an extensive bootlegging business on weekends in the home where they lived in southeast Des Moines. They were assisted by one Anna Miller who usually stayed in the home over weekends. Consumption of their liquor was not limited to their customers. They drank to excess at which times, according to defendant, Stewart ceased being his kind considerate self and struck her on several occasions. He often told her he was going to send her body to Estes. Estes is a funeral home in Des Moines engaged primarily in burial of negroes. Defendant is a caucasian. She testified she believed he so intended. Others testified Stewart often jokingly made such statements.

Shortly after 9:00 p.m. April 11, 1965 the Des Moines Police Department received a report a man had been shot at 609 S.E. Fifth Street. Upon their arrival they found defendant in front of the house screaming for help and shouting she did not mean to shoot him. She told them Stewart had struck her earlier that day, they had been arguing that evening, she was afraid he was going to harm her and that she shot Ralph Stewart. She kept exclaiming: 'Please don't send me to Estes.' Analysis of defendant's blood taken shortly thereafter showed 221 milligrams per cent or 121 milligrams over the recognized standard. Stewart's blood taken later that evening at Estes Funeral Home showed 131 milligrams per cent.

When the police officers went into the house they found the body of Ralph Stewart on the kitchen floor. He had been shot in the head. It caused his death. They saw an accumulation of beer cans and whiskey bottles on the table. Anna Miller had remained in the house. As a witness she described the gun used by defendant and related the events leading to the shooting. She was in another part of the house when defendant shot Stewart.

Defendant testified that evening there was an argument between her and Stewart because of his failure to insist on payment from a renter and his refusal to padlock the rented house. She decided to call a member of her family to come and get her. She was going to leave Stewart.

Defendant further testified when she went to the phone she found Stewart talking on the kitchen extension, he said 'get the hell off the phone' and the other party called her a 'white bitch'. She then went to the kitchen and demanded that Stewart call back and make the party apologize. Anna Miller testified Stewart was attempting to make such a telephone call when defendant shot him. Defendant had put her gun in her pocket earlier that evening. Defendant testified it was her gun and it was necessary to pull the hammer back before it would discharge.

Defendant on direct examination testified she walked into the kitchen, started to cry and told Stewart she didn't deserve being called such a name. She stated: 'He had the telephone receiver in his hand and told me to shut up and said 'Estes would get my body' or something to the effect Estes would, and took a step towards me with the phone raised and I jumped up and got the gun and it went off. He had taken the receiver away from his ear and had it raised and slightly turned. I was afraid he was going to hit me with the telephone and might kill me with it. I was afraid he was going to hit me in the head. I knew he was going to hit me with the phone. I knew that because he had hit me before. When I pulled the gun out of my pocket, I was trying to protect myself to get by him. I had to go in front of him and couldn't go to my left because there was a stove there. I couldn't go to the right because the table was there. I did not mean to shoot him. I just meant to protect myself until I could get past him. I don't remember any more. I was down on the floor, had my arms around him, talking to him, telling him I loved him and that it was an accident.'

On cross-examination defendant testified: 'At the time I fired the shot, he was looking at me. I could not say I was directly in front of him, maybe just slightly to one side. He wasn't standing at the phone talking, looking off to the north, when I shot him. I did not have my hand on the gun when I went in the kitchen. I just pulled the gun automatically to protect myself, I never meant for the gun to go off. I didn't pull the trigger. It just went off. Up to this point Ralph hadn't touched me on this day. He had the phone ready to hit me. I knew he was going to hit me in the head because he had hit me there before. I didn't say anything when I had the gun pointed at him. I don't remember how long it took me, the time he took the step toward me to jump up, pull the gun from my pocket and pull the trigger; it was all done in a matter of seconds.'

I. Defendant's requested instruction 2 stated that if defendant drew the pistol under circumstances that justified her doing so under the law of self-defense and while so drawn it went off accidentally, she would be entitled to a verdict of not guilty. Requested instruction 5 was to the same effect except it cautioned the jury defendant did not bear the burden of proving the alleged accidental discharge but it was incumbent on the state to prove beyond a reasonable doubt the gun in question was not discharged accidentally. Defendant took proper exceptions to the trial court's failure to give these instructions.

The instructions given included the statement the state had the burden of proving beyond a reasonable doubt defendant acted wilfully, unlawfully and feloniously. Feloniously was defined as meaning with criminal intent. In instruction 12 the trial court told the jury that if they found defendant by reason of intoxication did not knowingly, wilfully and intentionally murder Ralph Stewart then it would be their duty to acquit her.

Instruction 13 includes the following: 'It is the claim of the defendant that she did not unlawfully kill the said Ralph Stewart; that whatever the defendant did at the time and place in question was done by her in lawfull self-defense, that, is for the purpose of protecting herself from an alleged assault made on her by * * * Ralph Stewart.

'In this connection, you are instructed that the burden is upon the State to establish beyond a reasonable doubt not only that the defendant committed the act charged in the indictment and inflicted upon the person of * * * Ralph Stewart the alleged injury which caused * * * Ralph Stewart's death, but the State must also establish beyond a reasonable doubt that said injury was not inflicted by the defendant in self-defense.'

Thus is appears the court required the jury to find defendant acted wilfully and with criminal intent and further the state had the burden of proving beyond a reasonable doubt that whatever she did with the gun was not done in self-defense.

Wilfully ordinarily means intentionally as distinguished from accidentally. Clark v. Sheriff, 247 Iowa 509, 515, 74 N.W.2d 569, 573; Huston v. Huston, 255 Iowa 543, 548, 122 N.W.2d 892, 896; State v. Wallace, Iowa, 145 N.W.2d 615, filed October 18, 1966.

We believe the instructions when read as a whole presented defendant's theory of the case and were perhaps more favorable to defendant then requested instructions 2 and 5.

We have consistently held instructions given must be taken and construed as a whole and if the point raised in the requested instruction is substantially given or covered by those given it may properly be refused even if it contains a proper statement of the law. State v. Doudna, 226 Iowa 351, 360, 284 N.W. 113, 117; State v. Anderson, 239 Iowa 1118, 1137, 33 N.W.2d 1, 11; State v. Katz, 241 Iowa 115, 120, 40 N.W.2d 41, 45; State v. McKay, 256 Iowa 993, 995, 129 N.W.2d 741, 742; State v. Hill, Iowa, 140 N.W.2d 731, 735. See also 23A C.J.S. Criminal Law § 1333.

We find no reversible error was committed in refusing to give requested instructions 2 and 5 as the trial court gave the substance thereof in its instructions.

II. Defendant contends the trial court erred in failing to give her requested instruction 3. She asked the jury be instructed the state had failed to prove any motive for the crime charged and that lack of such proof was a circumstance in favor of defendant's innocence.

In State v. Knox, 236 Iowa, 499, 516, 517, 18 N.W.2d 716, 724, we define motive and point out it is not an element of crime and proof thereof is not essential to sustain a conviction but recognize proof of motive may be of probative value especially in cases of circumstantial evidence. See also 21 Am.Jur.2d, ...