State v. Thomas

• Decision Date: 17 November 1915
• Docket Number: No. 30630.,30630.
• Citation: 172 Iowa 485,154 N.W. 768
• Parties: STATE v. THOMAS.
• Court: Iowa Supreme Court

172 Iowa 485

154 N.W. 768

STATE

v.THOMAS.

No. 30630.

Supreme Court of Iowa.

Nov. 17, 1915.

Appeal from District Court, Polk County; Charles Dudley, Judge.

Defendant was convicted of murder in the second degree. From judgment on this conviction, he appeals. Affirmed.

See, also, 151 N. W. 842.

H. W. Laton, of Des Moines, for appellant.

George Cosson, Atty. Gen., for the State.

GAYNOR, J.

It appears that on the 8th day of August, 1914, the defendant shot and killed one James William Ashley. The instrument used in the killing was a 32-caliber revolver. Two shots were fired, only one of which was fatal. The first shot entered and passed through the left ear of the deceased. The other went through the body, entering about the right border of the left shoulder blade and extending through the body to the left side of the heart. The opening or entrance of the bullet was in the back and slightly to the right of the left shoulder blade. This was the wound that caused his death. The bullet came out of the left side of the heart. Deceased lived for a few hours thereafter. The fact of the killing is not in dispute. It occurred in the home of the deceased. Deceased was a man 66 years old. Defendant was 36. Deceased was, at the time, making his home with his son, H. A. Ashley. This son was married and had several children. Defendant's wife was a sister of Mrs. H. A. Ashley, and at the time of the shooting was staying with her in the Ashley home. Prior to this shooting, Mrs. Thomas had separated from her husband and at the time had been staying with the Ashleys about three months. The shooting occurred about the middle of the day. Upon the trial of this case, the defendant was convicted of murder in the second degree. From this he appeals.

Counsel, in presenting this case to this court, does not point out any definite and distinct error committed by the trial court upon which he relies for reversal; but, from an examination of the case as presented, we gather the thought that it is the contention of the defendant: (1) That the evidence, considered as a whole, does not justify a conviction of the defendant of any offense. (2) That the court erred in its instructions to the jury.

In presenting this case to the court, the defendant has not seen fit to set out all the instructions given by the court to the jury. Certain instructions have been singled out, which, the defendant claims, in and of themselves, separately considered, do not correctly express the law by which the jury should be guided in determining the ultimate fact of guilt upon the issues tendered. While the plea entered by the defendant was a general plea of not guilty, the defendant claims, and we think perhaps in this claim he is justified, that, in the plea of not guilty was tendered the following defenses: (1) Justifiable homicide; (2) self-defense; (3) insanity; and as a fourth proposition contends that in no event should the conviction have been of a higher degree than manslaughter.

This case was before this court on a former appeal. See State v. Thomas, 151 N. W. 842. On that appeal the record disclosed that certain evidence was offered by the defendant and rejected by the court. This was held error, and, upon that ground, the case was reversed. The evidence rejected on the former trial was admitted on this trial. This evidence tended to show that, while the defendant's wife was residing in the Ashley home, the deceased had sustained improper and unlawful commerce with the wife, and had forced her to submit to others. Evidence tending to establish that fact was submitted on this trial, though not of a character to impress the mind very strongly with its truth. There was further evidence tending to show that, prior to the killing, this fact was communicated to the defendant.

The evidence disclosing improper relations between the deceased and the defendant's wife was given by the wife, and is to the effect that she and her husband separated in the spring of 1914; that she went to live with the Ashleys about the 27th day of May, and continued to live there until some time in September; that about a week prior to August 8th the deceased had improper intercourse with her; that he had this once before, about a month prior to the killing. She testified further that several men had intercourse with her during the time she stayed with the Ashleys; that this occurred three times, the first time about two months before, the second time about one month before, and the last time about two weeks before, the killing. She claims not to know any of these men or to be able to describe them.

The defendant testified as follows:

“Q. Do you know of any reports being made to you about any misconduct or illicit intercourse taking place between the deceased and your wife during the time she was there? A. Yes, sir; I cannot tell how many times it came to me. Q. Can you name any of the parties that made the report to you? A. Yes, sir. Q. Tell the jury the names, if you can remember. A. F. D. Ashley the son of the deceased. The last time this report came to me, it was on the 8th of August, the day of the trouble. It had been reported to me that this old man Ashley and Alex were keeping my wife there for immoral purposes and prostitution prior to that date. J. F. Ashley told me that he had seen the deceased with his arm around my wife; that he was making love to her. He told me this on several occasions.”

Defendant further testified that, on the day of the killing, reports came to him that the Ashleys were keeping his wife for immoral purposes.

The record discloses that, on this 8th day of August, the defendant came from the home of his stepfather, situated about three miles distant, to the home of the deceased. He claims that he came for the purpose of getting his children, who were at the Ashleys with the wife. He testified: That when he reached the deceased's home, and the deceased discovered him there, the deceased commenced “cussing him.” That he said to the deceased:

“You sent word for me to come and get my children. I have come here for no trouble whatever.”

Thereupon they ordered the wife into the house. She went into the house, and the daughter-in-law handed the deceased a sword, and the deceased said, “I am going to kill you,” applying an opprobrious name. That the deceased then struck him with the sword and cut his pants. He jumped back, pulled his gun, and shot; the bullet passing through deceased's ear. The next time the deceased struck with a swinging stroke. Defendant jumped again and shot. He did not know whether he hit the deceased or not, but he immediately left. Deceased died about three hours thereafter.

This presents the defendant's side of the case, and upon this he predicates justifiable homicide and self-defense.

[1] The defendant first contends that, inasmuch as the evidence shows that the deceased was retaining his wife there for immoral purposes, this fact being brought home to him, he had a right to go to deceased's premises, demand his wife and children, and, if his demand was resisted, he had a right to overcome the resistance even to the extent of taking the life of the deceased. This proposition was considered on the first appeal. In that case it was said:

“The law is well settled that, if a man discovers another in the act of ravishing or attempting to ravish his wife and he kills him, he is justified therein as fully as the wife herself would have been had she killed him.”

The law herein expressed rests upon the thought that a husband has the same right to defend his wife against a wrong committed in his presence, as the wife would have to defend herself. However, the same rule must apply to his conduct as would apply to the conduct of the wife if she had invoked the rule of self-defense. A wife may defend herself against the assaults of a ravisher, even to the taking of life, if such appears reasonably necessary to her to be done in order to protect herself from such assault. The further rule applies that, in order to justify her act, in taking life, it must appear to her at the time, acting as a reasonably prudent person, that the taking of life was necessary to protect herself from such assault.

[2] A different rule, however, obtains where the husband discovers the wife in the act of adultery, an act consented to by her. There she would have no right to take the life of her paramour because of the act committed, and the husband in her stead and in her defense would have no greater right than she had in the premises.

The distinction is clearly pointed out in the quotation from Bishop appearing in the first opinion filed in this case, in which it is said:

“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.”

That is, the act in taking life, under such circumstances, is not wholly justified by conditions existing, but may extenuate the offense and reduce it to manslaughter. The quotation further proceeds:

“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 act, than of hearing of it when accomplished, to stir the passions. 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 wrongdoer, the offense is reduced to manslaughter.”

It is said in that opinion, in substance, that there is a clear distinction between the criminality of the act, where the husband kills a ravisher found in the act of ravishing, and where he kills one found in the act of committing adultery with his wife. The first offense is committed by force, unlawful and wicked, and force may be resorted to for protection, either by the ravished wife or her husband; by the husband on discovering the act in progress. The force applied by either...