State v. Trybom, 34376.

• Decision Date: 03 April 1923
• Docket Number: No. 34376.,34376.
• Citation: 195 Iowa 780,192 N.W. 813
• Parties: STATE v. TRYBOM.
• Court: Iowa Supreme Court

195 Iowa 780

192 N.W. 813

STATE

v.TRYBOM.

No. 34376.

Supreme Court of Iowa.

April 3, 1923.

Appeal from District Court, Montgomery County; George W. Cullison, Judge.

The defendant was indicted and tried in the court below upon a charge of murder in the first degree. He was convicted of murder in the second degree and sentenced to imprisonment for life in the penitentiary at Fort Madison. From this judgment and sentence he appeals. Reversed.W. C. Ratcliff, of Red Oak, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and Floyd E. Billings, Co. Atty., of Red Oak, for appellee.

STEVENS, J.

Emanuel Trybom died October 30, 1920, from the effects of a gunshot wound in his right side just below the nipple. The defendant is a brother of the deceased and was the only other person present in the room of the small house in which they lived together, where, and at the time, the shooting took place. He was immediately accused of the killing, taken into custody by a local peace officer, and placed in jail. An indictment charging him with murder in the first degree and a conviction thereunder of murder in the second degree followed. The house consisted of three rooms downstairs, arranged in a row north and south. There was a door in the southeast corner of the north room and in the same corner of the middle room. There was also an outside door in the east side of the middle room and one in the west side of the south room, which room was used as a kitchen. The furniture in the north room, where the tragedy occurred, comprised a dresser which stood against the north wall a short distance from the east wall near the northeast corner, and a bed on which the defendant slept in the southwest corner. There was a small stand, a stove, and a bed in the middle room on which the deceased slept. The fatal wound was inflicted late in the forenoon, death following a few minutes thereafter. Besides the two brothers, the only persons in the house at the time of the shooting were Carl Larson, who was in the middle room, and Gus Olson, who was in the south room, or kitchen. The defendant, Larson, and Olson, returning from Red Oak, where they had gone the preceding night, arrived at the house about 8 or 9 o'clock in the morning. The witnesses agreed that the defendant spent most of the time during the forenoon in the north room reading or lying on the bed. All of the parties had been drinking, and the defendant was, to some extent at least, intoxicated. A few minutes before the shooting, the defendant came from the north room to the door in the southeast corner thereof and made some boast to the three men who were in the middle room that he was a scientific boxer and, evidently, jokingly challenged them to a bout with him. The challenge was not accepted. Olson testified that the deceased and the defendant became angry and an angry verbal altercation between them ensued; but, so far as the evidence shows, neither made any threats or demonstrations of any kind, except the defendant, when he first entered the doorway, put up his hand in the attitude of boxing. A few minutes after this altercation took place, the deceased went into the north room, to which the defendant had returned, and almost immediately the fatal shot was heard. No conversation apparently took place between the brothers after the deceased entered the north room. Olson and Larson immediately entered the north room after they heard the report of the gun and saw the deceased lying on his right side about the middle of the room north and south and between the bed and the east wall with his head to the west and his body doubled up. The defendant was standing a short distance north of the deceased and near the southwest corner of the dresser. A shotgun was lying in front, or to the southwest, of the deceased, with the stock to the west. The defendant left the room as soon as Larson and Olson entered it, going across the street to the home of his parents. The constable who arrested the defendant shortly after the tragedy testified that he was noticeably under the influence of liquor and that he stated in explanation of what had occurred that he had to do it; that the deceased had abused him in the past; and that he was afraid of him. Although the defendant took the stand in his own behalf, he did not deny the testimony of this witness.

The defendant testified...