State v. Smith

• Decision Date: 18 October 1904
• Citation: 101 N.W. 110
• Parties: STATE v. SMITH.
• Court: Iowa Supreme Court

101 N.W. 110

STATE

v.SMITH.

Supreme Court of Iowa.

Oct. 18, 1904.

Appeal from District Court, Monroe County; Robert Sloan, Judge.

Indictment for murder. Defendant, being convicted of the crime of manslaughter, appeals. Affirmed.Mitchell, Tomlinson & Price, for appellant.

C. W. Mullan, Atty. Gen., and L. De Graff, Asst. Atty. Gen., for the State.

WEAVER, J.

The appeal in this case havbeen presented and submitted without the testimony given on the trial in the court below, we must presume the verdict to be correct, unless, as contended by counsel in argument, there is manifest error in the court's refusal of appellant's request for instructions to the jury, or in the giving of certain other instructions embraced in the charge of the court, to which exceptions have been preserved. The theory of the defense was that the defendant at the time of the alleged offense was a peace officer, and, in pursuance of his official duty, had arrested one S. D. Sarver upon charge of being drunk and disorderly, and thereupon one William G. (or Wid) Sarver interfered, and sought by violence to release his companion from defendant's custody, and in the struggle thus arising, and in the reasonable exercise of his authority as an officer of the law, and in self-defense, defendant fired the shot by which Wid Sarver was fatally wounded. The instructions asked by the appellant and refused by the court are as follows: “(1) If you find that S. D. Sarver and Wid Sarver were in a condition of intoxication, and were therefor placed under arrest by the defendant, then you are instructed that it was their duty to submit to such arrest, and they had no right by violence or otherwise to resist such arrest, and if they attempted to escape from the arrest it was defendant's duty to resist and prevent the escape. And if you find that they did, by violence upon the defendant, or otherwise, endeavor to escape from such arrest, then it was the duty of the defendant to do his utmost to prevent such escape, and in preventing it he had the right to use all the force and violence that, under all the circumstances and conditions then surrounding him at the time, seemed to him in good faith, as an ordinarily reasonable man, necessary to prevent such attempted escape, even to the use of a deadly weapon, if it so seemed to him necessary to use it. (2) You are instructed that you should consider as part of the circumstances and conditions surrounding defendant at the time of the homicide all the things that may have been told to the defendant concerning Wid Sarver or S. D. Sarver, or both of them, and which defendant believed to be true. (3) If you find that the defendant had arrested S. D. Sarver, and that Wid Saver, the deceased, appeared, and undertook by violence upon the defendant to effect the release of S. D. Sarver from such arrest, then it was defendant's duty to also arrest the said Wid Sarver, and it was said Sarver's duty to submit to such arrest; and if the said Wid Sarver, by violence upon or against the defendant, resisted such arrest, and attempted to escape therefrom, the defendant had the right to use all the force and violence that to him in good faith, as an ordinarily reasonable man, under all the surrounding circumstances and conditions, seemed to him necessary to prevent the escape.” The instructions given by the court upon its own motion, and to which exceptions are urged, are as follows: “(23) When a peace officer, in making an arrest for a misdemeanor, is resisted by violence and force in making such arrest, then such officer has the right to resist force by force; and when the resistance is violent and determined such officer is not...