State v. Thomas

• Decision Date: 18 March 1915
• Docket Number: 30279
• Citation: 151 N.W. 842,169 Iowa 591
• Parties: THE STATE OF IOWA v. ALFRED THOMAS, Appellant
• Court: Iowa Supreme Court

151 N.W. 842

169 Iowa 591

THE STATE OF IOWA v. ALFRED THOMAS, Appellant

No. 30279

Supreme Court of Iowa, Des Moines

March 18, 1915

Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF, Judge.

THE defendant was convicted of murder in the first degree and appeals.--Reversed and Remanded.

Reversed and Remanded.

H. W Laton, for appellant.

George Cosson, Attorney General, and Wiley S. Rankin, Special Counsel, for the State.

LADD J. DEEMER, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

The accused discharged a revolver into and killed James William Ashley, August 8, 1914. This occurred at the home of deceased's son, H. A. Ashley, whose wife was sister of the wife of defendant. At the time the latter's wife and children were staying at H. A. Ashley's house and had been for three months last past. Mrs. Ashley testified that defendant came to the house and inquired of deceased why he did not let the children come out instead of motioning them back when they started; that deceased denied motioning them back, when defendant pointed his revolver at him and discharged it twice; that she then handed deceased a sabre, which hung in its scabbard on the wall; that he took it, went out, and later was found lying in the back yard. Her son, thirteen years old, testified: "I first saw Thomas right to the door there--I saw him to the front door and granddad inside of the house there. Granddad was inside of the house. He shot granddad when Alfred was outside and Granddad was in the house, in the kitchen door there. Alfred went into the kitchen. Then granddad went into the middle room and Alfred went into the other door, and shot granddad the last time. After he shot this last time he went outdoors and went around the house and went down the hill there and I didn't see him after that. I saw granddad go out of doors after Alfred left. Alfred had already gone. I don't think granddad had anything when he went out of doors. He did not have his sword. He was getting the sword when Alfred started to shoot him the first time. The sword was kept in the other room. Granddad got the sword after the second shot. Saw my mother hand it to him. Thomas went out of the door about the time granddad got the sword."

On the other hand, the defendant testified that he went there for his children with the understanding that he could get them, "and when we went in the house my sister-in-law handed the old man this sabre, I told him, I says, 'don't do that, I didn't come here for trouble,' he says 'I am going to kill you.'"

Q. "Did he call you any names in connection with that?"

A. "Yes, he called me names."

Q. "Tell the jury what he said."

A. "Well, he called me a son-of-a-bitch, and I tried to get away from him, but could not."

State asks that that be stricken out as incompetent and a mere conclusion of the witness.

Court: "State what he did."

A. "And he struck at me and struck me the first time I got back just far enough so he cut my pants, and the next time he struck at me for to cut my head off, and of course I shot. I shot in self-defense. The last time I shot gave me a chance to get out of the house. I didn't know whether I had hit him or not and I got out and went home."

I. Counsel for defendant by various questions propounded to him sought to show (1) that his mind was inflamed at the time because of the improper relations between deceased and his wife and (2) that in consequence thereof, he was irresponsible for his acts. Objections thereto were sustained, the court intimating that if defendant had a grievance, redress elsewhere might be available. The law is well settled that if a man discovers another ravishing or attempting to ravish his wife and kills him, he is justified therein as fully as the wife herself would have been had she killed him. State v. Neville, 51 N.C. 423; Staten v. State, 30 Miss. 619. So, too, the husband may when necessary resort to force in order to take his wife from the possession of another in whose company he finds her if he has reason to believe they have committed immediately before or are about to commit adultery. State v. Craton, 28 N.C. 164; Wharton's Crim. Ev. Sec. 933. If the husband discovers another in the act of adultery with his wife, he is not entirely justified in taking his life, but the offense is thereby reduced to manslaughter. Says Mr. Bishop in 2 Bish. Crim. L. Sec. 708: "If a husband finds his wife committing adultery, and provoked by the wrong, instantly takes her life or the adulterer's . . . the homicide is only manslaughter. But if on merely hearing of the outrage he pursues and kills the offender, he commits murder. The distinction rests on the greater tendency of seeing the passing fact, than of hearing of it when accomplished, to stir the passions; and if a husband is not actually witnessing the wife's adultery, but knows it is transpiring, and in an overpowering passion, no time for cooling having elapsed, he kills the wrong-doer, the offense is reduced to manslaughter." See note to Price v. State, 51 Am. Rep. 322. The distinction between a case where the husband kills a person ravishing his wife and committing adultery is that the former offense is perpetrated by force, against which he may resort to force in protecting his wife the same as she might have done, while the latter is by her consent, and the offense is reduced to manslaughter, not to shield the wife, but owing to the provocation and passion engendered thereby in the husband. After sufficient time elapses to allow the blood to cool, the circumstance may not be shown in defense, for the law will not permit the wronged husband to take the law into his own hands and wreak vengeance on his wife's paramour. Wharton on Homicide, Sec. 188; State v. Bone, 114 Iowa 537, 87 N.W. 507; State v. Hockett, 70 Iowa 442, 30 N.W. 742.

Homicide is extenuated to manslaughter, not by the fact that it was perpetrated in a fury of high passion, but by such fury being excited by present provocation, which the law deems sufficient for the time to deprive men in general of that power of reason and reflection which ought to lead them to appeal for redress to the law, which provocation prompts them to take the law into their own hands. Maher v. People, 10 Mich. 212 (81 Am. D. 781); State v. John, 50 N.C. 163, 5 Jones Law 163 (49 Am. D. 396). See 21 Cyc. 751 et seq. and citations. Shufflin v. People, 62 N.Y. 229 (20 Am. R. 483).

Says Foster in his Crown Law, page 296: "A husband finding a man in the act of adultery with his wife and in the first transport of passion killeth him; this is not more than manslaughter. But had he killed the adulterer deliberately and upon revenge, after the fact and sufficient cooling time it had been undoubtedly murder. For let it be observed that in all possible cases, deliberate homicide upon a principle of revenge, is murder." Where the want of provocation is so clear as to admit of no reasonable doubt that the alleged provocation could not have had any tendency to produce such state of mind in ordinary men, the evidence thereof should be excluded; but if there be a reasonable doubt as to whether the alleged provocation had such tendency, it is the safer rule to let the issue go to the jury under proper instructions. Of course, the reasonableness or adequacy...