State v. Townsend

• Decision Date: 24 September 1885
• Parties: STATE v. TOWNSEND.
• Court: Iowa Supreme Court

66 Iowa 741

24 N.W. 535

STATE

v.TOWNSEND.

Supreme Court of Iowa.

Filed September 24, 1885.

Appeal from Decatur district court.

The defendant was convicted of murder in the first degree, and sentenced to confinement in the penitentiary for life. He appeals to this court.

ROTHROCK, J., dissents.M. L. Temple and Mitchell & Penick, for appellant, Leroy Townsend.

A. J. Baker, Atty. Gen., for the State.

ADAMS, J.

1. The defendant moved in arrest of judgment on the alleged ground that the indictment does not charge murder in the first degree. The indictment charges that “Leroy Townsend, on the twenty-eighth day of June, 1883, * * * in and upon one E. P. Ware, unlawfully, feloniously, deliberately, premeditatedly, and of malice aforethought, did commit an assault with a deadly weapon * * * then and there held in the hands of said Leroy Townsend, and then and there the said Leroy Townsend did, with specific intent to kill and murder him, the said E. P. Ware, unlawfully, feloniously, premeditatedly, deliberately, and of malice aforethought, strike said E. P. Ware with said deadly weapon * * * upon the head of him, the said E. P. Ware, a mortal blow, * * * inflicting upon the head of said E. P. Ware a mortal wound, of which said wound he, the said E. P. Ware, then and there died,” etc. To constitute murder in the first degree, where it is not committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, mayhem, or burglary, the killing must not only be deliberate and premeditated, but willful. Code, § 3849.

In the indictment in question the word “willful” is not used. It is insisted, therefore, that the crime charged is not murder in the first degree. But it is charged that the act was committed “with a specific intent to kill and murder.” A willful killing is simply an intended killing, and nothing could make the killing willful except the intended result of the defendant's act. It is not necessary to charge in the precise language of the statute. It is sufficient if the words used are fully equivalent, and we have to say that we think that the words used in this case are. The indictment, then, in our opinion, is not subject to the objection urged.

2. The court gave an instruction in these words: “A number of witnesses have been called and have testified as medical experts: that is, they have given you their opinion based upon hypothetical questions put to them. You will carefully consider this testimony, and give it the weight you may think it justly entitled to, taking into consideration the amount of skill or learning possessed by such experts; also their candor, or want of candor, upon the witness stand, or the interest manifested by them, if any, in the event of the suit. But while it is proper for you to consider this class of evidence, and give it such weight as you may think it justly entitled to, still it is proper to say that under the law it is regarded as the lowest order of evidence, or evidence of the most unsatisfactory character. It cannot be claimed that it ought to overthrow positive and direct evidence of credible witnesses who testify from personal knowledge, but it is important as corroborative when there is a conflict between the witnesses.”

The giving of this instruction is assigned as error. The killing in this case was conceded. The principal question presented to the jury was as to whether the defendant was in such mental condition as to be responsible for his act. The homicide was a very peculiar one. The person killed was an entire stranger to the defendant, and the homicide appears to have been committed without any reasonable ground of provocation. The only ground shown was a remark made by the deceased to some idle boys, but which was overheard by the defendant's stepmother, and was of such a character that the defendant claimed that it was an insult to his stepmother.

The deceased was a street peddler. On the evening of the twenty-eighth of June, 1883, he was in the town of Murray selling soap and liniment. He had erected some boxes, and was standing upon one of them with his wares before him. While thus engaged he stopped a moment to erect a lantern. Not succeeding readily, some of the boys around him jeered him. He replied by saying: “Patience and sweet oil will conquer anything but a cat.” At the time the remark was made, a crowd had collected of from 50 to 100 persons. The defendant and his stepmother were sitting at a little distance from the crowd in a buggy. After hearing the remark above set out they started off and drove home, a distance of about 600 feet. The defendant on the way made one or two obscure threats against the peddler, and was in a state of excitement and trembling, and Mrs. Townsend became alarmed. On reaching home he went into the house and started immediately to leave it. Mrs. Townsend asked him if he had a revolver with him. He said he had. She asked him to give it to her, and he complied with her request. He then jumped into the buggy and drove rapidly back towards town, and Mrs....