State v. Sipes

• Decision Date: 21 June 1926
• Docket Number: 37536
• Citation: 209 N.W. 458,202 Iowa 173
• Parties: STATE OF IOWA, Appellee, v. J. S. SIPES, Appellant
• Court: Iowa Supreme Court

209 N.W. 458

202 Iowa 173

STATE OF IOWA, Appellee, v. J. S. SIPES, Appellant

No. 37536

Supreme Court of Iowa, Des Moines

June 21, 1926

Appeal from Clay District Court.--JAMES DELAND, Judge.

Defendant was convicted of murder in the first degree. From a judgment entered thereon he appeals.--Reversed and remanded.

Reversed and remanded.

Heald Cook & Heald and LeRoy A. Rader, for appellant.

Ben J Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, and C. W. Baldwin, County Attorney, for appellee.

ALBERT J. DE GRAFF, C. J., and EVANS, STEVENS, FAVILLE, VERMILION, and MORLING, JJ., concur.

OPINION

ALBERT, J.

Only so much of the record will be referred to as is necessary to a fair understanding of the questions raised.

Appellant was the owner of a public garage in the town of Spencer, Iowa, at the time in controversy. The deceased, Daniel Detling, and a companion, one Harvey Howell, drove a Ford automobile into appellant's place of business. They had previously left the cushions of the car at some distance from the garage, and, as it threatened to rain, appellant carried them into his garage. Detling and Howell were indebted to appellant for a bill for repairs on the car amounting to approximately $ 6.50. After they entered the garage, appellant advised them that he had carried in their cushions, and they proceeded to take the cushions and put them into the car. Appellant told them that they could not take the cushions until they paid the bill. They had some words over this, and it is undisputed that Sipes said to them:

"Well, boys, take the car and get out with it, because I don't want to have any trouble over a small account. Take your car, and go on out."

Howell replied:

"We will take the damn car and get out when we get ready."

Sipes said:

"Well, I will take the key, and put the car in a stall, because I don't want it in the driveway."

Howell and appellant then started toward the car, one on each side. When they reached it, each leaned into the car, ostensibly to get the key. While appellant was in this position, Detling grabbed him by the collar and pushed him back from the car against a battery, or workbench, on which lay a knife in its scabbard. Detling and Sipes both reached for the knife, and Detling got the scabbard, while Sipes got the knife. Detling dropped the scabbard, and grabbed something else off the bench which looked like a wrench. Sipes says: "It looked to me to be longer than a knife." Detling raised what he had in his hand, to hit Sipes, and then Sipes struck him with the knife. It penetrated Detling's heart, and he died shortly afterward. This, briefly, is Sipes's account of the tragedy, and it is by reason of this testimony that an instruction was called for and given by the court on the theory of self-defense. The instruction reads:

"And his claim is that in what he did he was acting in self-defense. * * * But before one is justified in taking life in self-defense, it must be, or it must reasonably appear to be, the only means of saving one's life, or of preventing great bodily injury. If it is evident to the assaulted that the danger which appears to be imminent can be avoided in any other way, as by retreating from the conflict, the taking of the life of the assailant is not excusable. And if you shall find from the evidence in this case that, just before the defendant killed Daniel Detling, he had been unlawfully assaulted by the said Daniel Detling, and that, from the character of said assault and the weapon used, he had reason, as an ordinarily prudent and courageous man, to believe, and did in good faith and honestly believe, that he was in danger of being killed or suffering great bodily injury, and that the parties were so situated that he could not have retreated, or that he could not reasonably have expected to have preserved his life or protect himself from injury by retreating, then and in that case he was justified in using such force and such means to protect his life and person as may in good faith then have appeared necessary to him, as an ordinarily prudent and courageous man, under all the circumstances then surrounding him, even to the taking of life. * * *"

It is seriously asserted that this instruction does not correctly state the law in relation to the duty of the appellant to retreat. It is insisted that, under the circumstances herein, there was no duty on the part of appellant to retreat.

The ancient common-law rule, often spoken of as "retreat to the wall," is that a person is not justified or excused in killing one who attacks him unless he first retreats as far as he can do so without increasing his real or apparent peril. 30 Corpus Juris 68, Section 239. Modern legal thought, however, has modified this rule and narrowed the application of it. In 3 Rice on Evidence 574, Section 360, it is said:

"A very brief examination of the American authorities makes it evident that the doctrine as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule-which requires a person to flee when assailed, to avoid chastisement or even to save human life; and that tendency is well illustrated by the recent decisions of our courts bearing on a general subject of the right of self-defense."

In Runyan v. State, 57 Ind. 80, it is said:

"The weight of modern authority, in our judgment, establishes the doctrine that, when a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force; and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable."

Turning to the decisions of our own state, we find that the later decisions are disposed to follow the rule above quoted. It is quite the universal rule that, where the person is in his own house, or, as denominated by common law, in his castle, he is not bound to retreat when feloniously attacked. We have made this pronouncement in this court in State v. Middleham, 62 Iowa 150, 17 N.W. 446; State v. Bennett, 128 Iowa 713, 105 N.W. 324; State v. Leeper, 199 Iowa 432, 200 N.W. 732. See, also, Willis v. State, 43 Neb. 102 (61 N.W. 254).

The consensus of authority, without a dissenting vote, seems to be that, where homicide is committed in defendant's own office or place of business, the same rule applies as though he were in his dwelling house. Foster v. Territory, 6 Ariz. 240 (56 P. 738); Enyart v. People, 67 Colo. 434 (180 P. 722); State v. Bowers, 122 S.C. 275 (115 S.E. 303); State v. Laura, 93 W.Va. 250 (116 S.E. 251); Tingle v. Commonwealth, 11 Ky. L. Rep. 224, 11 S.W. 812; 30 Corpus Juris 71, Section 243, with a note containing many more cases.

In the Laura case, supra, the court submitted to the jury the question of whether the place where the homicide occurred was the dwelling house or habitation of the defendant. It was urged that this was error, because the doctrine of retreat did not apply to the place of business of the defendant. The court says:

"Besides, defendant's rights in cases of this kind are not limited strictly to his dwelling house. His right to defend his person and his property extends to his place of business also; and he is equally entitled to stand his ground and to defend his person and property against the invasion and assault of an intruder, even to the taking of human life, if that becomes necessary. In this case, the only home which defendant had was located in the hotel or rooming house, and in the building in which he did business; and he had the right to protect himself against the unlawful incursion and assaults of * * * Hall or of any other intruder. * * * That this right of self-defense, pertaining to one's castle, extends also to his place of business has been decided in a number of cases, referred to in a note to Morrison v. Commonwealth (Ky.), 67 L.R.A. 529 at 539, 545."

In the Enyart case, supra, the defendant was president of the First National Bank, and homicide was committed in the bank building. The court's instructions are criticized in relation to the question of duty to retreat, and the Colorado Supreme Court says:

"Such is the ancient doctrine of 'retreat to the wall,' but it has long since been abandoned in the Federal and most of the state courts" (citing authority).

The court cites its own case, in which it said:

"As to this doctrine of retreat, it may, in general, be safely said that the tendency of the modern cases is greatly to qualify the common-law rule. * * * But when a defendant is where he has a right to be * * * and is assaulted by the deceased in a way that defendant honestly and in good faith believes, and the circumstances being such as would induce a like belief in a reasonable man, that he is about to receive at the hands of his assailant great bodily harm, or to lose his life, the defendant, if he did not provoke the assault, * * * is not obliged to retreat or flee to save his life, but may stand his ground, and even, in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose; and this right of the defendant goes even to the extent, if necessary, of taking human life."

In the Foster case, supra, the court instructed, in part:

"If the defendant could have withdrawn from the danger, it was his duty to retreat. This means that, between his duty to retreat and his right to kill, the defendant must avail himself of any apparent and reasonable avenue of...