State v. Stansberry

• Decision Date: 09 February 1918
• Docket Number: No. 31994.,31994.
• Parties: STATE v. STANSBERRY.
• Court: Iowa Supreme Court

182 Iowa 908

166 N.W. 359

STATE

v.STANSBERRY.

No. 31994.

Supreme Court of Iowa.

Feb. 9, 1918.

Appeal from District Court, Davis County; D. M. Anderson, Judge.

Appellant was indicted for “assault with intent to murder.” He was convicted of an assault with intent to do great bodily injury, and appeals. Affirmed.J. M. Wilson, of Centerville, and Taylor & McCash, of Bloomfield, for appellant.

H. M. Havner, Atty. Gen., F. C. Davidson, Asst. Atty. Gen., Thomas A. Goodson, Co. Atty., of Bloomfield, and Charles Elgin, of Centerville, for the State.

SALINGER, J.

I. The giving of instructions 7, 8, and 10 is complained of. No exception was taken to No. 10 and we give complaint of the same no further consideration.

Instruction 7 charges that defendant claims to have acted in self-defense. Speaking to this claim, the court told the jury:

“That where one is assaulted by another in such manner as to induce the person assaulted to reasonably believe that he is at that time in actual danger of losing his life, or of suffering a great bodily injury, he is justified in defending himself, although the danger be not real but only apparent. And he may use such force and means of defending himself as may in good faith appear necessary to him as a careful, prudent, and cautious man under the circumstances at the time surrounding him. All that is required of him is that he shall act from a reasonable and honest conviction as to the danger, although he may be mistaken as to the extent of such danger.” (The italics are ours.)

The exception to this instruction is:

“That the same fails to state that a defendant would be justified under the plea of self-defense in resisting assault and battery.”

What has been said of instruction 7 and exception to same is substantially the situation as to instruction 8.

[1] The exception is well made. These instructions do limit the right reasonably to meet force with force to cases where either loss of life or great bodily injury is threatened. As an abstract proposition, this is not the law. One who is threatened with a mere assault and battery has as much right within reason to meet the force exercised against him with force as thus to repel a force which threatens a graver injury. State v. Goering, 106 Iowa, 636, 77 N. W. 327;State v. Evenson, 122 Iowa, 88, 97 N. W. 979, 64 L. R. A. 77. The state has favored us with an elaborate brief for which it is claimed that these cases have been modified. Our conclusion is that all this brief demonstrates is that the later cases require one to retreat rather than to take life, if it is reasonably apparent that retreat may safely be made, and that retreat is not required of one who is within his own house. As we view it, none of our decisions have so changed the rule as that, while one may meet force with force when threatened with death or great bodily harm, he may not do this if the harm threatened be less than that.

[2] 1a. To the defense of this charge the state adds the claim that, at all events, it was not erroneous as applied to the facts of this case. The argument for the claim is that it was the sole theory of the defense that defendant repelled something more grave than an assault and battery, and that therefore the court was not required to instruct on the theory of a resistance to a mere assault and battery.

Now, in a sense, estoppels do not prevail in the criminal law. We held in State v. Cameron, 177 Iowa, 379, 158 N. W. 563, that, though the defendant in an indictment for seduction denied all intercourse, such denial did not estop him to claim that the state itself had adduced testimony from which the jury might find that the element of previous chastity was not established beyond a reasonable doubt. So here, though the defendant insisted that he repelled something more grave than assault and battery, there was enough claim on part of the state that this was not so as that a jury might well have found either that the defendant resisted more than an assault and battery or no more than that. We are of opinion that the mere fact that such a theory of defense was presented did not justify these instructions.

[3] 1b. But is it not demonstrated by the record that the error was harmless? Had the verdict found the defendant guilty of assault and battery a different situation would be presented. Such a verdict might be due to the fact that instructions had eliminated self-defense. In other words, if the jury believed the defendant had committed a mere assault and battery, and believed also that he used no more force than was justified, still it could not acquit because the instructions told it, in effect, that the right to meet force with force did not exist in repelling an assault and battery. But the jury in this case was of opinion that defendant was guilty of an assault with intent to do a great bodily injury. So believing, it had no occasion to consider the rights of one who had done no more than commit an assault and battery. Therefore the failure to define the rights of one who had done no more than that was not injurious to the defendant. It was but a failure to deal with a situation that the jury must have found did not exist. It is self-evident the verdict is not a declaration that one has no right to defend against an assault and battery. And in reaching its final conclusion the jury dealt with assaults concerning which there had been no misdirection. Though the charge dealt erroneously with assault and battery, it instructed correctly that one who assaulted with intent to do great bodily harm should be acquitted, if all he did was no more than a justified resistance. With such an instruction, the verdict that defendant was guilty of assault with intent to inflict a great bodily injury should not be construed to negative the right to make justified resistance, where, as here, it can rest either upon a finding that defendant had not acted in self-defense at all or that he had used more force in resistance than was in reason justified.

[4][5] II. The defendant conceded on the trial:

“That whatever injuries described by Dr. Printz by the way of cuts resulting in loss of blood were made by this defendant, and made by him in the exercise of the right of self-defense.”

Certain clothing, grewsomely stained with blood, was shown to have been worn by the prosecuting witness at the time of the conflict. When this clothing was offered in evidence the defendant objected to its introduction because of having made said concession. The objection was overruled and the ruling is complained of. The argument is that the state had shown by the testimony of the physician who attended the prosecuting witness that certain wounds were inflicted upon the prosecuting witness, and defendant had admitted making these wounds so described, wherefore it was prejudicial to exhibit these garments because such exhibition was needless and manifestly an attempt to take unjustifiable advantage of the natural horror that would be engendered by the sight of these garments. If there was any just reason for permitting this clothing to be put in evidence, the fact that it may have had an injurious effect upon the case of the defendant would not make its admission improper. Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. at 530. Legitimate evidence cannot be excluded merely because it is grewsome and may tend to move the jury's feelings. State v. Moore, 80 Kan. 232, 102 Pac. 475. Was this clothing such evidence?

We are referred to Richardson v. State, 191 Ala. 21, 68 South. 60;Smith v. State, 183 Ala. 10, 62 South. 867;Rollings v. State, 160 Ala. 82, 49 South. 330;Barkman v. City, 41 Tex. Cr. R. 105, 52 S. W. 74;Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188;Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826;Jackson v. State, 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. Rep. 839; Gregory v. State (Tex. Cr. App.) 43 S. W. 1018;State v. Cushing, 14 Wash. 527, 45 Pac. 147, 53 Am. St. Rep. 883;McCandless v. Commonwealth, 170 Ky. 301, 185 S. W. 1100. These cases announce the general rule that where the clothing is identified as that worn by the assaulted party at the time of the conflict the condition of such clothing may be put before the jury. State v. Jones, 89 Iowa, 188, 56 N. W. 429, cited by the state, is a naked announcement that “because the defendant admitted that he killed Kemp was no reason why the weapon which he used should not be introduced in evidence.” The appellant does not challenge the rule, but claims to be within an exception to it. We therefore have no occasion to deal with the rule, but must confine ourselves to whether the defendant has avoided the rule.

Such testimony has been held admissible because it was circumstantial evidence forming some one link in the chain. 1 Starkie, Ev. 66; Holley v. State, 75 Ala. 14;King v. State, 13 Tex. App. 277;Story v. State, 99 Ind. 413;State v. McKnight, 21 N. M. 14, 153 Pac. 76;Davidson v. State, 135 Ind. 254, 34 N. E. 974. It has been admitted as part of the res gestæ. People v. Hong, 61 Cal. 387;State v. McKnight, 21 N. M. 14, 153 Pac. 76;McDonel v. State, 90 Ind. 320;People v. Knapp, 71 Cal. 1, 11 Pac. 793;Barker v. Perry, 67 Iowa, 146, 25 N. W. 100. It is, of course, admitted where doctors and other witnesses disagree as to conditions. Burgess v. State, 78 Tex. Cr. R. 469, 181 S. W. 464;Jackson v. State, 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. Rep. 839. One of the most usual reasons for admitting it is because it affords evidence of the character of the wounds and the manner in which they were inflicted. See Story v. State, 99 Ind. 414, and cases therein cited; and McKinney v. State (Tex. Cr. App.) 187 S. W. 960;Seaborn v. Commonwealth (Ky.) 80 S. W. 223;Carter v. State (Tex. Cr. App.) 170 S. W. 739;State v. Symmes, 40 S. C. 383, 19 S. E. 16;Hiles v. State (Tex. Cr. App.) 182 S. W. 1121.

But all these are declarations that when certain reasons exist for the admission the admission is...