State v. Stewart
| Decision Date | 01 April 1924 |
| Docket Number | 35702 |
| Citation | 197 N.W. 974,198 Iowa 618 |
| Parties | STATE OF IOWA, Appellee, v. JOHN T. STEWART, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 26, 1924.
Appeal from Montgomery District Court.--E. B. WOODRUFF, Judge.
JOHN T STEWART was convicted in the court below of murder in the second degree, and appeals.
Affirmed.
Tinley Mitchell, Ross & Mitchell, for appellant.
Ben J. Gibson, Attorney-general, Floyd E. Billings, County Attorney, and Paul W. Richards, for appellee.
The appellant, John T. Stewart, and George Austin, a farm hand in his employ, were separately indicted by the grand jury of Montgomery County for the murder of Albert Girardi, which occurred January 22, 1923. The facts upon which the prosecution was based are disclosed, with little dispute, by the written confession of appellant, and his own and Austin's testimony upon the trial. These facts are, in substance, as follows:
Girardi was engaged in the illicit sale of intoxicating liquors, and on the afternoon of the tragedy, appeared at the residence of appellant, near Red Oak, in Montgomery County, with five one-gallon jugs and a five-gallon keg of whisky concealed in the Dodge touring car which he was driving. The five one-gallon jugs were in a burlap sack; one jug was removed and, accompanied by appellant, taken to the house by Girardi. Austin, who was at the home of a near-by neighbor, was summoned by telephone. After drinking some of the contents of the jug, the three men entered into an agreement for the sale and purchase of the whisky. Appellant and Austin agreed to pay Girardi $ 100 for the entire quantity. They returned to the automobile, and the burlap sack containing the four remaining jugs of whisky was removed from the car by Girardi, as was also the five-gallon keg. Appellant took the sack containing the five one-gallon jugs to the house. Austin went with him. While there, appellant made out a check for $ 100, payable to Austin, who indorsed it for delivery to Girardi. The two men again returned to the automobile, and appellant picked up the five-gallon keg and carried it to the granary, which was distant about seventy-five steps, where he covered it up in an oat bin. In the meantime, Austin tendered the check to Girardi, who declined to receive it, and insisted upon payment for the liquor in cash. Austin protested that they did not have the amount on hand, but offered to go to Red Oak with Girardi, have the check cashed, and pay him in money. This Girardi refused to do. Austin then told him that, if he did not want the check, he could take back the liquor. Girardi ordered him to return it to the car. This Austin refused to do. An altercation quickly followed, in which blows were struck by both Austin and appellant. Austin testified that Girardi stooped to pick up a heavy iron kingbolt, and that he (Austin) pushed him in such a way that he picked it up with his left hand. Austin immediately wrested it from him, and in the scuffle struck him "a backhanded lick in the face" with the kingbolt. About this time, appellant came out of the granary, saw the scuffle, hurried to where the men were, and immediately struck Girardi a violent blow with his fist on the left jaw. His justification for this blow was that he saw Girardi reaching for his pocket, as if to get his gun. The effect of the blow was to turn him partly around, and to cause him to fall upon his hands and knees. While he was in that position, according to the testimony of Austin, the heavy sheep-lined duck coat which Girardi was wearing was turned up on his back, so that he saw Girardi reach to his hip pocket, place his hand upon his gun, and attempt to remove it. Appellant claims that he did not see the gun, but saw the movement of Girardi's hand toward his pocket. Appellant then said to Austin: "You will have to hurry; he's getting his gun." At that time, Girardi was on his hands and knees, facing slightly to the southeast, with both Austin and appellant standing in his rear, a little to his left. While he was in this position, Austin struck him a blow with the kingbolt on the right side of the head, knocking him face forward, flat upon the ground. Possibly two blows were struck,--Austin was not sure on this point. The body was turned over on its back, and an effort made, by manipulating the arms, to resuscitate it. The attempt failing, a question arose between them as to what to do with the body. Appellant suggested that they put it in the henhouse, stating that it would never do for his mother to know that a man was killed on the place. After a few minutes' discussion, the body was deposited in the front part of the Dodge touring car. Appellant got in the front seat, and Austin lay down between the two seats. Appellant drove the car westward for about a mile and a quarter, when the assault upon Girardi was renewed. According to the statement signed by appellant, he saw Girardi attempting to rise, and immediately said to Austin: "For God's sake, hit him again; he is raising up." Immediately Austin rose from his position between the seats of the automobile and struck Girardi another blow on the right side of the head. The two men a little later changed positions, Austin taking the front seat, and appellant the rear. After continuing a short distance west, Austin turned the car north, and, driving upon a highway little used by the public for about a quarter of a mile, stopped at the side of the highway near a bridge. A log was placed under the automobile, the gasoline was drained from the carburetor, and the car was set on fire. The burning car was discovered a little later in the evening by a passer-by, who summoned help from the neighborhood. When those who were summoned arrived, the body of Girardi, crumpled up in the front part of the car, was discovered. There was a large pool of blood on the footboard of the automobile, and it had run out under the door onto the running board. The body was immediately removed from the car and placed upon the ground.
The only witnesses who testified concerning the tragedy were appellant and Austin. When the two men were arraigned, Austin pleaded guilty to the charge of murder in the first degree, and was sentenced to imprisonment for life in the penitentiary. Appellant entered a plea of "not guilty," on which plea a trial was had, resulting in his conviction of murder in the second degree and sentence to the penitentiary for a term of twenty-five years.
I. It is conceded in the evidence that Girardi died from the effect of the wounds inflicted upon his head by Austin in the manner stated, but there is a conflict in the views of the State and the defense as to just when the fatal blow was struck,--that is, whether at the house or in the automobile. This is material in several aspects of the case, as will presently appear. The defense urged upon the merits was that the life of Girardi was taken by Austin in self-defense.
At the conclusion of the State's evidence, a motion was made by counsel for appellant, which was renewed at the close of all the evidence, to withdraw from the consideration of the jury all of the evidence relating to what occurred at the house, and in a separate paragraph, all that occurred in the automobile, upon the ground that the blow or blows struck in the first instance were in self-defense, and that, at the time the assault was renewed in the automobile, Girardi was dead. The motion was overruled.
First, as to the plea of self-defense: We have already pointed out the relative position of the three men at the time the first blow with the kingbolt was struck by Austin. Girardi was on his hands and knees, with the two accused men standing near by in his rear. If, as claimed by Austin, he was, immediately before being struck, attempting to remove a pistol from his right hip pocket, he was on his knees and one hand. A 32-caliber automatic revolver was removed from Girardi's right coat pocket, shortly after his body was taken from the automobile, and laid on the ground by the side of the highway. The transfer of the pistol from his right hip pocket to his coat pocket is not accounted for. Austin testified that he did not remove it, and appellant said that he saw no gun at any time. If the pistol was in the right coat pocket at the time of the affray, at the house, it would have been impossible for Girardi to have had his hand on it or to have readily got hold of it. The coat was raised and drawn over his back, so that the pistol was not near his right hand. Both of the witnesses testified that they had seen a gun similar to the one taken from his coat pocket in his possession on a previous visit to the Stewart place, and they knew that he habitually went armed.
The taking of a human life is excusable on the ground of self-defense only when it is, or reasonably appears to the person assailed to be, the only means of saving his life or of preventing the infliction upon him of some great bodily injury. He is not required to draw nice calculations from appearances; but, to justify the taking of life, there must be such appearance of an impending danger as that this reasonably seems to be the only means of preventing the threatened injury or death. The three men were not far from the same age and weight. At the time the first blow was struck, Girardi was on the ground, in the position described. It being conceded that he was making some effort to get his gun, the jury may well have found that he was otherwise wholly in the power of the two men, and that there was no justification for the assault made upon him with a deadly weapon. It is not claimed that he succeeded in doing anything more than place his hand upon his...
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