State v. Wilson
| Decision Date | 17 November 1943 |
| Docket Number | 46278. |
| Citation | 11 N.W.2d 737,234 Iowa 60 |
| Parties | STATE v. WILSON. |
| Court | Iowa Supreme Court |
H. S. Life and McCoy & McCoy, all of Oskaloosa and Frank R. Talbott, of Brooklyn, for appellant.
John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., and L. R Carson, Co. Atty., of Oskaloosa, for appellee.
On October 19, 1942, an indictment was filed charging the defendant, and his two brothers, Albert and Clarence Wilson, with the crime of murder, in that on June 15, 1942, they did willfully deliberately, feloniously and with premeditation and malice aforethought, and specific intent, kill one Harry Bolden. The defendants were granted separate trials, and the State elected to try this defendant first. On November 16, 1942, he waived arraignment and entered a plea of not guilty. On that date he filed a motion for continuance because of the absence of a witness, Dr. Boortz. The motion was denied. The error assigned upon this ruling will be referred to later. After preliminary motions and demurrer, the trial was begun on November 23, 1942, and the verdict was returned on December 2, 1942. In support of his plea of not guilty, the defendant urged that the killing was done in self-defense, in an affray in which Bolden was the aggressor, and that, because thereof and because of the defendant's mental condition and intoxication, there was no premeditation, deliberation, or malice aforethought, and no specific intent to kill.
Numerous errors have been assigned by the defendant. Before specific discussion of any of them, we will make reference to the general fact situation.
Many of the facts are not in controversy. At the time of the trial the defendant was thirty-eight years old, married and lived with his family in Oskaloosa. He had played some professional baseball, but his regular work for many years had been in connection with various railroad companies. Nothing derogatory to him appears in the record other than the charge under consideration. He had been working in the shipyards at Cleveland since early April, 1942, and had returned to Oskaloosa on Saturday, June 13, 1942, for the purpose of enlisting in the United States Army. He had done some drinking Saturday. His brothers (co-defendants) had returned to Oskaloosa that same week-end. Their mother lived there. Monday afternoon (June 15, 1942), after getting a haircut, and after drinking some beer in two or three taverns, he went to the liquor store and bought two quarts and three pints of whiskey. His brother Clarence, commonly called Dick, then took the defendant and the whiskey, and three or four others, including one Andrew Jackson Rogers, to the latter's home. This was about midafternoon. Rogers is a colored gentleman, a bachelor, who lived in a small two-room dwelling, about twenty by twelve feet, out near the city limits. He is most often referred to in the record as "Punk Wing". In the party were the defendant and his two brothers, Clyde Ballinger, Paul McFarlan, and Rogers. All were white men but Rogers. They spent the time drinking beer and whiskey, visiting and arguing. The defendant left shortly after he came to take two children home who had ridden to the place with him. He returned in a short time. Clarence Wilson was gone for an hour or more, but returned about 8:15 P. M. At that time he testified the defendant and his brother Albert were asleep at the table with their heads on their arms. Others of the party left and returned during the afternoon. Shortly after 8:15 P. M. Harry Bolden, a colored man, came in. He had been drinking some beer that afternoon, but had the evening meal at home, and left his brother's house about 7:30 P. M. He and his wife had come to Oskaloosa from Flint, Michigan, about eight or ten years before. He had at one time done some prize fighting. There was testimony that he had a quarrelsome, pugnacious disposition. Some of this testimony was with respect to specific instances which had either been observed by the defendant or had come to his knowledge. Three witnesses testified that he had a general reputation in the community of being a quarrelsome and violent person. Two witnesses testified that his general reputation as to being a peaceable and law-abiding citizen was good.
When Bolden dropped in on the party at the Rogers' home late that evening, he saw a bottle of whiskey on the table and asked Rogers for a drink. He was told that the whiskey belonged to the defendant, and the latter told him to help himself. He poured himself about a two or three ounce drink in a jelly glass. Later he and the defendant each took two more drinks out of the same glass. Someone testified that these drinks were pretty good "shots". The group continued to argue rather noisily about baseball, horseracing, prizefighting, etc. There was testimony: that Bolden told Ballinger he owed him a good beating, for some slight to Bolden's children; that he told about whipping the Dave Brown family; that he boasted that he could whip any man in the room; and that no one took issue with him on the point. While the defendant did not so testify, the state introduced in evidence a statement signed by him on June 16, 1942, stating that Bolden had argued with him about something, the nature of which he had forgotten, and told him how tough he (Bolden) was and threatened to stick a pen knife in him. It is not disputed that about this time the defendant said to his brother A1: "What do you say, let's go home", and A1 said: "Come on", and both of them left the building, and were followed by Bolden, and a little later by Rogers and Clarence Wilson. The latter is badly afflicted with arthritis and much of the time is compelled to use crutches although he did not have them that night. He drew a pension from the United States Government for being totally disabled.
Albert Wilson had his automobile parked in the yard by the woodshed about twenty-five feet from the Rogers' house. The defendant testified that Albert went ahead of him along the path toward the automobile, and he was walking along, when Bolden ran up behind him and grabbed him around the neck and threw him to the ground, and while both were struggling, Albert came back and got down over them and said: "Cut it out, you guys; what is the matter?" A1 then got Bolden loose and he and the defendant got up, and A1 put his arm over Bolden's shoulder and they walked over back of the automobile. The defendant and Clarence and Rogers then walked to the front end of the automobile. Clarence and Albert corroborate the testimony of the defendant as above given. Donald Padgett, twelve years old, and his sister, Joyce, age ten, and three or four other children were playing and running about in the street in front of the Rogers' home, about 9:00 o'clock in the evening. Lillian and Juanita Stewart were with them. They were witnesses for the state. On direct examination Donald testified he saw three white men and a colored man come out of the house and they were fighting along down in the yard and finally all of them went down on the ground near a little tree, the colored man on his knees and the others around him holding him. One of the white men struck at the colored man with the bottle but the colored man knocked the bottle out of his hands, and Punk Wing threw it into the ditch. The men all got up then and quit fighting and walked over toward a lilac bush, and nobody was holding the colored man. On cross-examination he testified that he was not sure, that there might have been only two white men there:
Donald's father then called him, and the children all went to the Padgett home, about a half-block away. When the men were first on the ground he heard the colored man say: "I'll take you one at a time, but not all at once." After he went home he thought he heard about three blows struck.
Joyce Padgett testified that she saw the men come out of the house, and saw them on the ground on the colored man, but she saw no blows of any kind and heard nothing said by anyone. But she also testified that she heard three blows struck after she went home. Juanita Stewart, thirteen years old, was one of the children. She testified for the state. She saw five or six men come out of the house and two of them-a white man and a colored man-began wrestling on the ground. She had no recollection of what the other men did. She also went to the Padgett home, but came back shortly afterward.
Going back to the testimony of the participants, Albert testified that they walked toward the rear of the car, and Bolden picked up a club back of the car and said something about knocking somebody's head off, and he (Albert) ran away. Clarence testified to hearing the same remark and heard some blows being struck, and then heard Bolden say to Glenn that he "would let his guts out". Glenn then bumped into Clarence and knocked him over as he was backing away from Bolden. Clarence testified that when he got up Bolden was lying on the ground, and Glenn was leaning against the car holding his right arm. Some of the other men then carried Bolden into the house. After helping Glenn into the car ...
To continue reading
Request your trial