State v. Twine

• Decision Date: 09 December 1930
• Docket Number: No. 40302.,40302.
• Citation: 211 Iowa 450,233 N.W. 476
• Parties: STATE v. TWINE.
• Court: Iowa Supreme Court

211 Iowa 450

233 N.W. 476

STATE

v.TWINE.

No. 40302.

Supreme Court of Iowa.

Dec. 9, 1930.

Appeal from District Court, Polk County; Loy Ladd, Judge.

The defendant was indicted for the crime of murder. He entered a plea of not guilty and was tried to a jury, which returned a verdict, finding the defendant guilty of murder in the first degree, and directed that said defendant be imprisoned in the State Penitentiary for the remainder of his life. Judgment was rendered accordingly. The defendant appeals.

Affirmed.

S. Joe Brown, of Des Moines, for appellant.

John Fletcher, Atty. Gen., and Carl S. Missildine, Co. Atty., and Alex M. Miller, Asst. Co. Atty., both of Des Moines, for the State.

WAGNER, J.

On June 18, 1929, the grand jury of Polk county returned an indictment against the defendant, charging him with the crime of murder, alleged to have been committed as follows: That said Anthony Twine on or about the 26th day of May, 1929, in the county of Polk, in the state of Iowa, unlawfully, willfully, deliberately, premeditatedly, and with malice aforethought, killed Frank Brown by shooting him, etc. Shortly thereafter, the defendant entered a plea of not guilty and was tried at the September, 1929, term of the Polk county district court, and the result of said trial was a disagreement of the jury.

The shooting occurred some time after midnight and before 3 o'clock on the morning of May 26, 1929. Both the defendant and Frank Brown, the deceased, were of African descent. The shooting occurred in the home occupied by the defendant and his common-law wife. The defendant testified, on cross-examination: “I married here in Des Moines by common law marriage.” The defendant is 46 and his wife 21 years of age. It is shown that they served public suppers at their home on Saturday evenings, where rare meat, such as ground hog and opossum, were served. In connection therewith, drinks were also served. Dancing and “crap shooting” were indulged in for amusement. About 9:30 on the evening of May 25th, the deceased, with one of his friends, Jake Jackson, went to the Twine home. The deceased had liquor on his person. When they arrived, they found the defendant and his wife, and a white man named McDuff. Crap shooting was engaged in by the three men and there was a consumption of some of the liquor. McDuff became disabled from too much liquor and was put to bed in the room next to the street, which was the second room west of the dining room, where the dancing and crap shooting took place. Brown's dog was with him and the defendant desired that the dog leave the house. Jackson testified that, while the deceased was in the kitchen removing the dog from the house, the defendant reached back in a trunk in a corner of the dining room and got a gun and put it inside of his shirt. The defendant claims that he got the gun from under the pillow in the adjoining bedroom. The defendant testifies: “There was no particular argument or quarrel about the dog, everything was peaceful and quiet. I did not argue about the dog. He didn't argue about the dog.” Jackson left the defendant's home about 1 or 1:30 a. m., but the deceased remained. Jackson testifies: “Frank never quarreled with Hickory (a nickname for the defendant). They were all right when I left there.” The defendant testifies that Frank Schultz, one of his neighbors, dropped in for a short time and took appellant's gun, admonishing appellant that the gun would get him into trouble. It appears that Schultz took the gun with him. Shortly after Jackson left appellant's home, two men and two women, of African descent, arrived. The new arrivals, the defendant and the deceased engaged in dancing and shooting of dice. One of the lady visitors testified that Brown had a controversy with Twine and spoke cross to her; that Brown pulled at her and offered to dance, and she pushed him away, because she thought he was too drunk to dance; that she danced with Twine; that Twine soon settled the quarrel that Brown started. None of the remaining witnesses present saw or heard any quarreling or unpleasantness. The defendant testifies: That about 1:30, he went to Schultz for the gun and he refused to let him have it, saying, “You don't want to get in trouble, you don't need the gun,” and that about 2 o'clock he sent his wife for the gun, who obtained the same and he put it in his pants pocket. The defendant claims that the deceased had been threatening him with a knife. None of the witnesses present, at any time during the night, saw the deceased have a knife, except Jackson, who testifies: “Frank (the deceased) took the knife out of his pocket. He broke this bottle of whiskey in his pocket and took his knife out and shut it up and put it back in his pocket. He had a big knife with about two and one half inch blade. The handle had kind of little notches upon the side. That was the only time I saw him have the knife.” The defendant testifies that the deceased and McDuff had difficulty in the early part of the evening; that the deceased, at that time, threatened McDuff, displaying his knife, when he intervened in behalf of McDuff, to which the deceased took exception. After the last four visitors had left, it appears that the piano player and Mrs. Twine went outside the house. The defendant testifies that, as the crowd went out of the house, he said: “Frank, you come on and go home. I will take you home.” And that the deceased responded: “Yes, I am going home; but I am going to get even with you. I am going to settle with you.” And that “as he said he was going to get even with me, he jumped up and rammed his hand into his right pocket, where I had seen him put his open knife. I told him to stop and he didn't stop, so I shot to scare him. I didn't aim to hit him; but he kept coming and I backed up two or three steps. He was rushing me and I raised the gun a bit and shot to stop him. He fell between the table and the wall.” One bullet made a wound upon the left hip of the deceased, the second entered the mouth, knocking out one of the incisors, and entered the brain, killing him instantly. The defendant immediately took his gun to the neighbor living in the next house east, telling him to keep it and to call the police. When the police arrived, they found the defendant siting in the dining room, where the body of the deceased lay. He admitted that he had shot Brown, claiming that the deceased had attacked him with a knife. The officers asked if he had the knife and he said, “No.” A thorough search of the corpse and the premises failed to reveal the presence of a knife. When the officers asked him for the gun, he first said he had thrown it in the river, later said he had buried the gun, and finally told them that he had taken the gun to his neighbor, Buster Brown, where the gun was obtained. He told the officers that the deceased was no good; that they could leave him there in the house “until he stinks, and when he does I will just throw some dirt over him.” On the witness stand, the appellant told an elaborate story of numerous quarrels promoted by the deceased during the evening and repeated attacks made upon appellant with a knife. In this. he is without corroboration. All the witnesses who were present testified that they saw no attacks whatever made by deceased; no knife has ever been found. While there may be other testimony in the record, we do not deem it necessary to set it out in greater detail.

[1] The various complaints of the defendant will now be considered. The case was called for trial (this being the second trial of the defendant) on December 2, 1929, at which time the defendant filed a motion to set aside the indictment, upon the ground that before the return of the indictment, he was not given an opportunity to challenge the panel of the grand jury and that said body which returned the indictment was not selected, drawn, summoned, and sworn as prescribed by law, for the reason that the jury commissioners who made up the list from which the grand jury panel was selected, willfully and deliberately excluded from said grand jury list the names of all Negroes or persons of African descent, solely because of the race and color of said persons so excluded; thereby denying to the defendant the equal protection of the laws, in violation of the provisions of the Constitution of the United States and of the state of Iowa. The only support of the averments of the motion are the affidavits of the defendant and his attorney. In the affidavit of the defendant, he declares that there are about 9,000 Negro citizens resident of Polk county, Iowa, and were at least that number at the time of the general election in November, 1928; that he, and possibly 3,000 or more of his race, voted in Polk county at said general election; that the grand jury, who considered and returned the indictment against him, were all white men; and that he is informed and verily believes, that in making up the list from which said grand jurors were selected, the jury commissioners willfully, deliberately, and premeditatedly excluded all Negroes. In the affidavit of the attorney, he declares that he is a resident and voter of Polk county, and has been for twenty-seven years; that during said period of time, he has observed the personnel of the various grand juries that have been impaneled from time to time, and that during said period of time no name of any Negro has ever been called; “that because of the fact that the name of no Negro was ever called on said grand jury panel, I have made personal investigation of the cause, since there are about 9000 Negroes resident of Polk County, Iowa, about 3000 of whom habitually vote at every general election, and have been informed and verily believe, that the members of the Jury commissions who made up the grand jury list, willfully, deliberately and premeditatedly exclude from said grand jury list the names of all Negroes;” that he has personally examined the grand...