State v. Windahl

• Decision Date: 05 October 1895
• Citation: 64 N.W. 420,95 Iowa 470
• Parties: STATE v. WINDAHL.
• Court: Iowa Supreme Court

95 Iowa 470

64 N.W. 420

STATE

v.WINDAHL.

Supreme Court of Iowa.

Oct. 5, 1895.

Appeal from district court, Mahaska county; D. Ryan, Judge.

The defendant was indicted, tried, and convicted of the crime of manslaughter, and appeals. Affirmed.W. S. Kenworthy and J. C. Williams, for appellant.

Milton Remley, Atty. Gen., for the State.

DEEMER, J.

The case was submitted upon a transcript of the record. After the submission, and after the adjournment of the May term of this court, an abstract and argument on behalf of appellant were filed. These we will not consider, except upon a proper showing, which has not been made in this case, and they will be stricken from the files. In re Caywood's Will, 56 Iowa, 307, 9 N. W. 228;Johnson v. Railroad Co., 51 Iowa, 25, 50 N. W. 543; State v. Thompson (decided at the present term) 64 N. W. 419. On account of the character of the case, we have examined the record carefully, and given it very full consideration. The defendant was indicted for the killing of one William Adams. It appears that at the time of the homicide defendant was a special policeman in the city of Oskaloosa; that he arrested the deceased, with a companion, without a warrant, for the crime of vagrancy, or for some misdemeanor, said to have been committed by them, not in his presence. While on the way to the mayor's office, the deceased gave the defendant a shove, and then ran away from him, apparently attempting to escape. The defendant ordered deceased to halt, and, he not obeying, defendant fired three shots, the last of which took effect, resulting in the death of the arrested man. Two defenses were interposed: First, that the killing was justifiable in order to prevent the escape of the deceased; and, second, that it was accidental, in that defendant fired the shots to frighten, and not to kill. The jury found the defendant guilty, and, as before stated, he appeals.

It appears that deceased was a tramp, and his name is a matter of some dispute. It is stated in the indictment to be William Adams, but there is some testimony tending to show that it was in fact J. P. Barnes. The court instructed, in substance, that an erroneous allegation as to the name was not material. The instruction was correct. McClain's Code, § 5687, and cases cited.

2. A photograph of the deceased, taken after he was shot, was introduced in evidence, over defendant's objection. There was no error in this. As there seemed to be some question about the name of deceased, the photograph was admissible as a means of identification. Udderzook v. Commonwealth, 76 Pa. St 352.

3. Testimony was adduced tending to show that some time before the homicide defendant stated that the next time he shot he would not shoot to scare, but to kill. In view of the defense of misadventure interposed, we think the testimony was clearly admissible, although the defendant did not have the deceased in mind at the time he made the remark.

4. After the jury had retired to deliberate, they asked for further instructions as to what was meant by the word “willfully,” as used in the indictment and instructions given by the court. In response thereto the court gave the...