State v. Tice

Decision Date20 October 1964
Docket NumberNo. 51400,51400
Citation130 N.W.2d 678,257 Iowa 84
PartiesSTATE of Iowa, Appellee, v. Leon Robert TICE, Jr., Appellant.
CourtIowa Supreme Court

Ross F. Caniglia, Council Bluffs, for appellant.

Evan Hultman, Atty. Gen. of Iowa, William J. Yost, Asst. Atty. Gen., Noran L. Davis, County Atty. of Pottawattamie County, and John P. Churchman, Asst. County Atty., for appellee.

LARSON, Justice.

On July 18, 1963, the defendant Leon Tice, Jr. was charged by indictment of 'willfully, deliberately and premeditatedly, with malice aforethought' killing Judith Jackson on June 21, 1963, in violation of Section 690.2, Code of Iowa, 1962, I.C.A. He was arraigned July 23, 1963, counsel was appointed for him at his request, and a plea of not guilty was entered. Trial to jury on September 17, 1963, resulted in a verdict of guilty with direction that he be punished by death. Motion for a new trial was overruled on September 27, 1963, and defendant was sentenced to die in the manner prescribed by law, at the state penitentiary in Fort Madison, Iowa, on the 12th day of November, 1964. He appeals.

I. Appellant's first assignment of error is that the evidence does not sustain a finding of murder in the first degree and the court erred in failing to dismiss the first degree charge. We find no merit in this assignment.

Section 690.4 of the 1962 Code, I.C.A., provides in part: 'Upon the trial of an indictment for murder, the jury, if it finds the defendant guilty, must inquire, and by its verdict ascertain and determine the degree; * * *.' There seems to have been no dispute as to material facts. Defendant did not testify.

Irene Jackson, mother of Joan Burtness and 13-year-old Judith Jackson, became acquainted with Leon Tice, Jr. on June 10, 1963, at their residence at 4047 Avenue G in Council Bluffs, Iowa. Joan Burtness, estranged from her husband, had been seeing defendant and, with financial aid from Tice, was to get a divorce and marry him. However, on June 19, 1963, Joan decided to remain with her husband and so advised defendant. Although he tried hard to dissuade her and even cried, Joan would not see him again. On the evening of June 20, 1963, defendant appeared at their residence carrying a gun, cursing, and threatening to kill Joan's husband. It appeared defendant had borrowed this gun, a German Walther which did not fire when tested, and he returned it the next evening, June 21st. In the meantime he had purchased a .22-caliber nine-shell Harrison Richard revolver, Serial #U-17594 (Exhibit 9), at Dave's Sporting Goods in Omaha, Nebraska. He told a neighbor he had quit his job, showed him the gun, and left his place about 6:10 P.M. June 21st. Soon thereafter he appeared at the Jackson-Burtness residence, and for some 2 1/2 to 3 hours engaged Mrs. Jackson in conversation through a locked screen door. When he produced a gun, Mrs. Jackson again attempted to talk him out of his avowed purpose of shooting Joan's husband and, when he said to her, 'You're right, Irene. You want this gun.', she thought she had succeeded. However, when she unlocked the screen to take the gun, defendant shoved the gun into her stomach and forced her back into the dining room. When the 13-year-old deceased Judith Jackson tried to go out the back door, he forced her back to the kitchen doorway. The two infant sons of Joan were asleep in their beds at the time and no one else was home. When Mrs. Jackson told him not to point the gun at Judith, he shot Mrs. Jackson in the side, turned the gun back on Judith, and in spite of her plea 'Junior please, for God, don't', shot her twice. She fell on the dining room floor, and Mrs. Jackson ran. He pursued her outside the house, shot her in the back, and then again as she tried to get over a fence. Tice then returned to the house and shot Judith again and both the boys as they lay in their beds. Randy, the two-year-old boy, was dead when help arrived. The wounded were taken to the hospital where Judith died.

Defendant then went to his parents' home and, when police arrived, shot himself in the head. The wound was not serious and he soon recovered. The gun and the spent and unspent shells were introduced in evidence, although due to some mutilation the bullet recovered from Judith's body could not be identified as having come from this particular gun.

Police officers testified Tice told them he had been jilted by a young lady, and the reason he had shot the children was to get even with her and her husband. On June 22, 1963, after being advised of his constitutional rights, he gave a statement to Captain Merriman of the Council Bluffs police department in the presence of two other officers. The Captain testified Tice was reluctant at first, stating he had a headache, but as they visited he voluntarily began to talk. Notes were taken and a statement prepared for Tice's signature. However, he postponed signing the statement and later on advice of counsel refused to do so. In testifying from his notes, Exhibit 14, the Captain related the substance of that interview. Tice told where he met Mrs. Burtness, of her action for divorce, where and when he bought the gun, and why he had done all the shooting. Tice said, 'I was hurt and wanted to hurt her, didn't intend to use a gun on anyone particularly, but thought of using it on myself.' He said he knew Joan loved her mother and sister and thought this would be a good way to get at Joan. He said he had to reload the gun once during the affray. He denied it was a case of ill temper, but said 'I would do it again.' He said Joan and he had planned a perfect marriage, that he had borrowed $200.00 to help her secure her divorce. He had stopped drinking after meeting Joan, although he had consumed 12 bottles of beer during the day of the shooting. He said he was not drunk, just 'fortified', but also said if he had been sober, 'I would probably got her old man also.' He also told the captain that Joan told him on the phone she still loved him 'but was going back to her husband on account of the boys.' He said she refused to see him and 'I told her that they would regret this.' Tice also said Joan's husband had threatened to shoot him once, that he had been married twice, and had made it about halfway through the tenth grade at Eldora. He stated he shot the mother first, and later as she ran out the door shot her again and two more times at point blank. Judith was shot two or three times and lay on the dining room floor. When he came back into the house, he reloaded the gun, fired again at Judy point blank, and went into the bedroom. Billy woke up and Tice said he fired one shot at him, and another at Randy as he stood over the bed. Then he went home and, as the police came, he went into the bedroom, placed the gun to his head and pulled the trigger. He said he was conscious when being taken to the hospital. He had no military service due to other troubles which had him incarcerated at Eldora and Anamosa. There was no objection to this testimony and no denial of the officer's statement that Tice had been advised of his constitutional rights.

There was other testimony by neighbors and officers called to the scene covering the same facts, but we think this sufficient to disclose overwhelming evidence from which a jury could find a willful, deliberate, and premeditated killing with malice aforethought. That defendant fatally shot Judith Jackson is not denied.

II. It is appellant's position that the evidence showed no more than murder in the second degree, for it does not appear that Tice threatened anyone other than Joan's husband, and that he was armed because he feared meeting Mr. Burtness at the Jackson residence when he tried to see Joan. It is his contention that he shot those he liked and to whom he bore no ill will without premeditation. This argument was for the jury and it did not believe that explanation, but found the killing had been done deliberately, premeditatedly, and with the intent to kill. The evidence fully sustains that finding.

In State v. Haffa, 246 Iowa 1275, 1291, 71 N.W.2d 35, we said any unlawful killing with malice aforethought is murder, and to constitute first degree murder there must be the additional elements of deliberation, premeditation and intent to kill. Also see State v. Jackson, 251 Iowa 537, 545, 101 N.W.2d 731; State v. Mutter, 248 Iowa 772, 778, 81 N.W.2d 20, 23; State v. Christie, 243 Iowa 1199, 53 N.W.2d 887, 54 N.W.2d 927; State v. Leib, 198 Iowa 1315, 1323, 201 N.W. 29....

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4 cases
  • State v. Lass
    • United States
    • Iowa Supreme Court
    • 16 Abril 1975
    ...250 (Iowa). Deliberation and premeditation 'need not exist for any particular period of time prior to the killing.' State v. Tice, 257 Iowa 84, 89, 130 N.W.2d 678, 681. As we have held, use of a deadly weapon with opportunity to deliberate warrants an inference of deliberation and Upon exam......
  • State v. Hall
    • United States
    • Iowa Supreme Court
    • 16 Enero 1974
    ...evidence, if believed, is also sufficient to warrant a verdict of first-degree murder. § 690.2; State v. Gilroy, supra; State v. Tice, 257 Iowa 84, 130 N.W.2d 678. If defendant is asserting in his last contention that the jury was simply wrong in its findings on the evidence, then his recou......
  • State v. Henderson
    • United States
    • Iowa Supreme Court
    • 28 Junio 1978 that the two instructions shift the burden of proof to him, but we believe the instructions to be immune to this attack. State v. Tice, 257 Iowa 84, 130 N.W.2d 678; State v. Fischer, 245 Iowa 170, 60 N.W.2d 105. recognizes that his position is at odds with State v. Lass, supra, 228 N.W.2......
  • State v. Gilroy, 54886
    • United States
    • Iowa Supreme Court
    • 29 Junio 1972
    ...690.1; State v. Limerick, 169 N.W.2d 538, 540 (Iowa); State v. Jiles, 258 Iowa 1324, 1332--1338, 142 N.W.2d 451; State v. Tice, 247 Iowa 84, 88--89, 130 N.W.2d 678; State v. Hofer, 238 Iowa 820, 833--836, 28 N.W.2d 475. See generally 3 Underhill's Criminal Evidence, §§ 642--643 (5th The rec......

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