State v. Smith

Decision Date22 November 1932
Docket NumberNo. 41395.,41395.
PartiesSTATE v. SMITH.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Keokuk County; D. W. Hamilton, Judge.

The defendant was indicted and tried and convicted of the crime of assault with intent to commit murder.

Affirmed.

C. J. Lambert, of Sigourney, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

BLISS, J.

The defendant was convicted of the crime of assaulting Henry Goebel with the intent to murder him. The defendant was about fifty-nine years old, and had spent most of his life in and about the town of What Cheer. He appears to have been a “jack-of-all-trades,” doing common labor of all kinds for whoever might call him.

The prosecuting witness, Goebel, was sixty-three years old, and his occupation at the time in question and for several years past was farming. He lost his wife the preceding April.

For eight or nine years previous, Smith had been living with a woman whose maiden name was Jessy Surber. She was placed upon the witness stand by the state, and from an examination partly in the presence of the jury and partly in its absence, and from the examination of other witnesses in the absence of the jury, the court concluded that she was either the common-law or ceremonial wife of the defendant, and sustained the defendant's objection to her appearing as a witness against him. She denied that she was either the statutory or common-law wife of the defendant, but admitted that she had lived with him about three years, “off and on.” We may assume from the record that her testimony would have been adverse to the defendant.

In the forenoon of August 5, 1931, Goebel and she and one Charles Ladley, and her brother-in-law and his wife, went into the country in Goebel's car to look at some timber land. They ate dinner at the brother-in-law's, and about 8 o'clock p. m. she and Goebel and Ladley returned in the same conveyance to her home in Southeast What Cheer. She and the defendant were living in this home. Each had contributed to its purchase, and the property had been deeded to her as Jessy Smith, and so appeared of record.

Goebel's hired man and his wife and a twenty-one year old daughter of Goebel and another lady each testified that about noon of August 5th each of them had heard the defendant say that he was going to shoot or kill Goebel. Defendant denied this.

He had been assisting a neighbor in doing chores, and late in the afternoon took his Winchester shotgun, loaded with No. 6 birdshot, and went hunting down along the creek back of his home. On his return, he was about to stop at his neighbor Nelson's home, directly east of his own place. As he came into the neighbor's yard, he saw an automobile turn south from the east and west road in front of his home, enter his own premises, and stop in the yard just west of his house. Instead of stopping at Nelson's, he continued westward along the road until he came to the front of his home, when he cut across in a southwesterly direction towards the left side of the automobile. He said he did not recognize them until he reached the car. The automobile was a four-door Whippet touring car, with steering wheel on the left side. Goebel was in the front seat behind the steering wheel. Jessy sat by his side, and Ladley was on the left side of the rear seat.

We will give first the state's version of what took place:

As the defendant came into view, Jessy said: “There Tine comes with a club. Sit still and see what he is going to do.” As the defendant drew near, they saw the “club” was a gun. He came directly to the left side of the car, where Goebel was sitting, and with an oath said: “I am going to kill you.” Immediately he shoved the barrel of the gun at Goebel's head, and, as the latter grabbed it and pushed it aside, the defendant pulled the trigger and the charge went through the upper right-hand corner of the top of the car. Goebel and Ladley, though remaining in the car, engaged in a scuffle with the defendant for the possession of the gun, and finally took it away from him. Ladley kicked the defendant, and the latter tore Ladley's trousers in the struggle. In the meantime, Jessy had got out of the car and came around in front of it and was struggling with the defendant.

The following is the defendant's story:

When he recognized the occupants of the car, he said to Goebel and Ladley: “What do you mean? I am going to give you a licking.” Ladley replied: “There is no man about you.” Defendant said: “Too much for you.” Defendant was holding the gun under his left arm. The left rear door of the car was open and Ladley kicked him in the jaw. Defendant hit him with his right fist. Jessy grabbed the defendant's left arm, and he pushed her away with the remark that he did not wish to hurt her. The defendant had his hands at the throats of Ladley and Goebel, with his wife tugging at him and the gun under his left arm for a time. During this time the gun went off, but he did not have it in his hand, nor did he pull the trigger.

A lady occupying the house just west of defendant's home heard the shot and the racket and went to the door and saw the car and persons about it, but could not recognize them or hear what was said, or see what they were doing. No one else testified as to what took place.

Shortly after the altercation, Goebel, Ladley, and Jessy drove out of the yard and went to the town marshal. Later, the marshal arrested the defendant at a neighbor's home and took him in custody. Goebel, Ladley, and Jessy returned to the defendant's home, where they stayed all night and had breakfast in the morning. The marshal testified that, when he arrested the defendant, the latter said: “If it takes forty years, I will get him.”

The sheriff who took the defendant to the county jail the next day testified that the defendant then said: “If I ever get out, I will kill him yet.”

Among the other assignments of error are the following, although we have not numbered them in the order in which they appear in appellant's argument:

(1) The court erred in allowing Jessy Smith, wife of the defendant, to testify against him.

(2) After permitting defendant's wife to testify for a time, and then sustaining defendant's objection to her competency, the court erred in not withdrawing all of her testimony from the jury and instructing the jury that it could not be considered.

(3) The court erred in refusing to admit certain photographs of the premises where the shooting took place.

(4) The court erred in permitting the state to use certain witnesses who were not before the grand jury to testify, without notice, to matters not rebuttal.

(5) The court erred in instructing as to no included offense below assault with intent to commit manslaughter.

(6) The court erred in not permitting the defendant to show the prior unfriendly relations between defendant and Goebel.

(7) The court erred in overruling defendant's motion for a directed verdict, and particularly the ground thereof that the state had used defendant's wife as a witness before the grand jury.

[1] I. With respect to assignment No. 4, we are satisfied there was no error. Part of the testimony complained of was strictly rebuttal, and part of it might have been introduced in the state's main case. Under our holdings in ...

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  • State v. Farber
    • United States
    • United States State Supreme Court of Iowa
    • January 20, 1982
    ...51 L.Ed.2d 585 (1977). We have recognized the statute applies in grand jury investigations of specific charges. See State v. Smith, 215 Iowa 374, 245 N.W. 309 (1932); Molyneaux v. Wilcockson, 157 Iowa 39, 137 N.W. 1016 (1912). The issue in a grand jury inquiry is much different than in a se......

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