State v. Sterrett

• Decision Date: 12 May 1890
• Citation: 45 N.W. 401,80 Iowa 609
• Parties: STATE v. STERRETT.
• Court: Iowa Supreme Court

80 Iowa 609

45 N.W. 401

STATE

v.STERRETT.

Supreme Court of Iowa.

May 12, 1890.

Appeal from district court, Washington county; W. R. LEWIS, Judge.

The defendant was tried and convicted of the crime of manslaughter, and he appeals.Newman & Blake and E. W. Tatlock, for appellant.

John Y. Stone, Atty. Gen., and Geo. F. Henry, for appellee.

ROTHROCK, C. J.

1. One Wade Campbell was killed by the discharge of a pistol in the hands of defendant on the 11th day of March, 1884, at Morning Sun, in Louisa county. The defendant was soon afterwards indicted for murder. He was tried and convicted of manslaughter. An appeal was taken to this court, and the cause was reversed and remanded for a new trial. See 68 Iowa, 76, 25 N. W. Rep. 936. He was again tried, with the like result, and upon appeal to this court the judgment was again reversed. See 71 Iowa, 386, 32 N. W. Rep. 387. A change of venue was taken to the district court of Washington county, and the cause was again tried. The jury found the defendant guilty of manslaughter, and the court sentenced him to imprisonment for two years in the penitentiary. The cause is, therefore, here upon the third appeal. The defendant was 16 years of age at the time the alleged crime was committed. The deceased was aged 18 years. They were pupils in the same school; were classmates and friends. The defendant's seat was located near a stove in the school-room; and, on account of the heat, he took a seat, temporarily, near a window, and raised the window. The deceased was seated near by, and he closed the window. The defendant raised it again, and placed a book under it. This appears to have been the only cause of any ill feeling between the parties. Shortly after this occurrence the school had a recess, and the deceased went out of the school-house before the defendant. When the defendant came out of the door the deceased appeared to be waiting for his approach, and seized him, and threw him down on his hands and knees. The defendant raised up, and there was a violent struggle between them. All of the evidence shows that at the outset, and throughout the struggle, the deceased was the aggressor, and the defendant endeavored to release himself and avoid the conflict. The defendant had a small pistol in his pocket, known as a “twenty-two caliber.” During the struggle, he pulled it from his pocket; and by some means it was discharged, and the ball entered the breast of the deceased near the left nipple, and he died from the effect of the wound within a very short time. It appears from the evidence that the defendant was quite sick on the night before the tragedy; that a blister was placed on his side; that he was still sick and feverish in the morning, and was advised not to go to school, but that he thought it better to be in attendance, as an examination was to take place in a few days, and he was anxious to be prepared for it.

There were two grounds of defense: First, that the pistol was discharged by accident; and, second, that, if the jury found it was not by accident or misadventure, then that the defendant was excusable on the ground of self-defense. The defendant testified in his own behalf, and stated that he did not intend to discharge the pistol, but that he took it from his pocket in the belief that deceased would then cease his assault upon him, and that it was discharged by the deceased attempting to take the weapon from the defendant. If this were all of the evidence, it might well be claimed that the jury ought to have found a verdict of not guilty. But one witness testified that during the struggle the defendant said: “God damn you! Let loose there, or I will shoot you!” It is true, several other witnesses who were near by testified that they did not hear any such remark. The teacher of the school testified that, when defendant gave his account of the affair, immediately after it occurred, he said, “I shot him;” and when the teacher asked why, the answer was, “He was abusing me.” The teacher testified that the defendant said “the Campbell boy was abusing him, and that he could not stand it any longer,” and that “he did not care if he did shoot Campbell, so he got him off.” Another witness testified that he heard the defendant, on the same day of the shooting, say to one of his attorneys: “He had me down, and I told him to let me up or I would shoot him; and I did.”

We are asked to reverse the judgment on the ground that the verdict is not supported by the evidence. In our opinion, if we were to do so, it would be an unwarranted invasion of the province of the jury. We cannot hold that the evidence, without conflict, shows that the pistol was accidentally discharged; and we may say the same of the evidence tending to show that the act was excusable upon the ground of self-defense. That question was for the consideration of the jury. We think the judgment ought not to be reversed on the ground that the verdict is not supported by the evidence.

2. It is claimed in behalf of appellant that the court erred because the jury were instructed that they should find the defendant guilty of manslaughter, or not guilty. It is urged that, as a felonious killing by violence involves the lesser crime of an assault, the jury should have been instructed that it was their duty to determine the degree of crime, and that, if they believed that the defendant was guilty of an assault only they should so find. It is true that the statute provides that, “where there is a reasonable doubt of the degree of the offense of which the defendant is proved to be guilty, he shall only be convicted of the lower degree,” (Code, § 4429;) and “upon an indictment for an offense consisting of different degrees, the...