State v. Weston

• Decision Date: 12 May 1896
• Citation: 67 N.W. 84,98 Iowa 125
• Parties: STATE v. WESTON.
• Court: Iowa Supreme Court

98 Iowa 125

67 N.W. 84

STATE

v.WESTON.

Supreme Court of Iowa.

May 12, 1896.

Appeal from district court, Jackson county; William F. Braman, Judge.

The defendant was indicted for murder in the first degree. He was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for 18 months, and he appeals. Affirmed.D. A. Wynkoop and Eli Cole, Jr., for appellant.

Milton Remley, Atty. Gen., and Levi Keck, Co. Atty., for the State.

ROTHROCK, C. J.

1. Counsel for appellee filed a motion to strike the evidence from the record upon the ground that it was not preserved by a bill of exceptions within the proper time. The motion is overruled. There is doubt in our minds whether the motion is well taken, and as this is a criminal case, and the sustaining of the motion would not affect the result or conclusion we have reached on the merits of the case, it is better that this disposition be made of the motion.

2. There is much complaint made by counsel for the defendant in reference to alleged misconduct of counsel for the state in the course of the trial in the district court. This consists of improper remarks made in argument to the jury, and in alleged professional statements made by one of the counsel during his address to the jury. We have examined these objections. They are presented in such a way that it is very difficult to determine to what the objections relate. Some of the alleged objectionable language was not properly made of record; and, even if it were, we do not think it would require us to reverse the judgment for the misconduct of counsel. We have disposed of this question in this general way because it would require many pages of an opinion to set out, discuss, and dispose of all the points made by counsel on this feature of the case. The proper disposition of the matter demands no elaborate consideration. The mere reading of the record discloses without question that the defendant was fairly tried, so far as the acts and conduct of the prosecuting attorneys were involved.

3. The indictment was for the murder of one Hiram Hoover. It is conceded that Hoover was killed, and that he came to his death by being shot by the defendant with a revolver. It is not claimed, in behalf of the defendant, that the fatal shot was accidental. The revolver was discharged by the defendant at the deceased purposely and intentionally. The defense relied upon is twofold: (1) That the killing was excusable, as being in self-defense; and (2) that the defendant was a peace officer, and, while engaged in arresting the deceased for a breach of the peace, he was opposed with such resistance that it was necessary for the defendant to kill or disable the deceased by the use of the revolver. The appeal is presented to us upon an immense record. The killing occurred at a ball or dance, and many of those present were examined as witnesses, so that the record shows that the taxable costs amounted to more than $1,400. The manner in which the case is presented in this court has made it necessary to examine and scrutinize the evidence very closely. In the opening statement of the argument in behalf of the appellant, facts are stated which we do not find in the record, and the affray which led up to the homicide is described apparently without much regard to the testimony of the witnesses. As an example, in the statement of facts it is said the deceased was in the act of striking defendant, when defendant drew his revolver, “and ducked his head” to avoid the blow aimed at him, and fired the shot. This is stated as though it was an established fact in the case. An examination of the record shows that there was a very decided preponderance of evidence that the defendant shot the deceased in the back, when he was six or seven feet away from him. We merely mention this as an instance of the extravagant claims made in behalf of the defendant. We will now proceed to state the actual facts in the case as shown by the testimony of the witnesses. It appears that there is a place in the suburbs of the city of Bellevue called “Harmony Park,” which is owned by a number of citizens of Bellevue, and it is used as a pleasure resort. There is a building in which there is a dance hall, a ticket office, music stand, and a barroom. There was a ball appointed for that place on the night of December 30, 1893. It does not appear that invitations were issued, nor that the dance was expected to be a select gathering. So far as is shown, it was free for all. The crowd collected, and the dance proceeded, and the bar was in full operation, doing a business which appeared to be satisfactory to the proprietors and the customers. Indeed, the evidence tends to show that the bar was well patronized. The defendant was city marshall of Bellevue. Harmony Park was outside the corporate limits of the city, but the defendant attended the dance for the purpose of keeping order, and at the Harmony Park dance he was armed with a revolver, and he carried what is known as a “policeman's billy.” Another man, named Evans, was present, who was sworn in as a special policeman, to aid in maintaining peace and order. The deceased was a common laborer. His usual occupation was running on the river as a raftsman in summer, and chopping wood in winter. He was married, but for some time before the ball at Harmony Park he lived separate from his wife. She lived in Bellevue, and attended the dance on the night of December 30, 1893. The deceased appeared at the hall rather late on that night. The dance had commenced some time before he arrived. There is some conflict in the evidence as to his condition when he put in an appearance. It is quite evident, however, that he was intoxicated, and that he continued in that state after he went there. He pushed in past the ticket seller, and did not pay for his admission. He took off his coat, and rolled up his shirt sleeves, and swaggered round among the people. After a...