
    State of Iowa v. George Baker, Appellant.
    1. Murder: self-defense: instructions. Where instructions have been given directly covering in a general way the subject matter of a defense relied upon by one charged with crime, a reversal will not be ordered because the court fails to cover every particular circumstance relied upon, when no request for instructions is made calling attention of the court to some particular phase of the evidence defendant may wish to have emphasized. As where defendant relied upon self-defense and it appeared that his peril and that of his brother was joint, and the court correctly instructed regarding the right of accused to defend against a threatened attack upon himself and brother, failure to specially instruct that defendant had the right to defend his brother from the attack was not erroneous, in the absence of request therefor.
    2. Murder in second degree: submission of issue. Where it is clear that defendant struck deceased with an instrument which, as used, constituted a deadly instrument and caused his death, the question of murder in the second degree must be submitted.
    3. Murder in first degree: deliberation: submission of issues. The deliberation and premeditation essential to the crime of murder in the first degree need not exist for any specific length of time prior to the killing; and where it appears that defendant selected a deadly weapon, and with opportunity to deliberate used it in a deadly manner, the court should not take the question of deliberation from the jury, but should submit the question of murder in the first degree, although there was no specific proof of deliberation and premeditation, aside from the proof of a violent infliction of a mortal wound.
    4. Criminal law: remarks of counsel: failure of defendant to testify. A criminal cause will not be reversed because of the possibility .that the jury might have deduced from the remarks of counsel, by way of remote inference, that some of the facts insisted upon as having been established might have been negatived by defendant had he gone upon the stand.
    5. Reasonable doubt: instruction: Where the question of reasonable doubt has been fully and properly presented to the jury, an instruction to the effect that if defendant inflicted the wound that contributed to or caused decedent’s death the State was not required to show that neither defendant nor those attending him were negligent in the care of the wound, was not objectionable in failing to state that the jury must find from the testimony beyond a reasonable doubt that defendant inflicted the wound.
    6. Same. The instruction “you may convict defendant of murder in the first degree, or of murder in the second degree, or of manslaughter, as you may find from the evidence beyond all reason-. able doubt he has been proven guilty,” was not objectionable as indicating that the evidence established beyond reasonable doubt the guilt of defendant in one degree or the other of criminal homicide; especially as the jury was elsewhere told that they could only convict of either degree of homicide upon evidence establishing defendant’s guilt, beyond a reasonable doubt, of the degree of which they should find him guilty.
    
      Appeal from Montgomery District Court. — Hon. N. W. Maoy, Judge.
    Wednesday, June 30, 1909.
    Under an indictment charging murder in the first degree, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for eight years. From this conviction he appeals.
    
    Affirmed.
    
      Ralph Pringle and J. M. Junlcin, for appellant.
    
      H. W. Byers, Attorney General, and Chas. W. Lyon, Assistant Attorney General, for the State.
   McClain, J.

The circumstances of the killing of one Claude Grice by the defendant, with which he was charged in the indictment, so far as material to a consideration of the errors relied upon for reversal, were as follows: The deceased and his brother, Marion, were engaged in operating a bakery in Bed Oak, occupying for that purpose the first floor and basement of a building which fronted to, the east. The stairs to the basement were at the rear or west end of the building. On the day preceding the homicide the defendant and his younger brother Newton were with the deceased in the bakery, when something was said in relation to a small debt owed by Newton to the deceased, and Newton paid the deceased $1.Y5, which, as Newton testifies, was a little less than deceased claimed, but it is not contended that there was any particular quarrel or ill feeling at this time as between the deceased and Newton. On the following morning Newton went to the bakery, and Marion, the brother of deceased, gave him a receipt for $1.75 in full of all indebtedness. On this visit deceased said something to Newton, who had previously worked with him in the bakery, in regard to helping that day, in -order that deceased might get through his work sooner. Newton declined, on the ground that he was sick. Later, and about noon,' defendant and his brother returned to the bakery, and went to the basement to see the deceased, who was there at work, and deceased treated deféndant and his brother to whisky, drinking some of it himself. Defendant and his brother were near the east end of the basement, and deceased was between them and the stairway. Deceased again asked Newton to work for him, which Newton declined to do. Deceased addressed an opprobrious epithet to Newton, and accused him of not treating him right in refusing to help him, and defendant replied that deceased should not talk to his brother in that way, when deceased said, “I will get you, you son of a bitch,” and ran upstairs. In a few seconds deceased returned down the stairs, saying “I will get you, you sons of bitches.” These are the facts preceding the immediate circumstances of the homicide as testified to by Newton. Defendant did not testify on the trial. Newton further testified, in substance, that as deceased came towards them, the witness saw in the right hand of deceased what looked to him like a gun; that witness and the defendant were then right by some metal scale weights; that each seized one of the weights, and stepped behind the open door of what is called the “proof box,” defendant being behind Newton; that as deceased approached, Newton could see only the lower part of his body, and the defendant was not in as good position to see deceased as Newton was; that Newton said to defendant, “Look out, George, he has got a gun;” that as deceased advanced, defendant threw the metal scale weight at him, and deceased fell forward, having received the injury which subsequently caused his death, and that defendant and Newton then left the bakery without investigation as to the extent of the injury inflicted upon deceased, and went to the mayor of the city, reporting that defendant had knocked the deceased down with a weight. The entire evidence negatives the possession of a weapon by deceased.

I. The court instructed the jury fully as to the law of self-defense, and the only complaint in this respect is of the failure to tell the jury specifically that defendant had the right to defend his brother from ■ . , , , . m . an attack by the deceased, ihe furors were , instructed, however, with reference to the right of defendant to make self-defense, as against a threatened attack upon him and his brother, in the reasonable belief that deceased was armed with a gun, and this we think was as far as it was necessary to go under the evidence. The testimony of Newton, as already set out, tended to show that the threat of deceased was toward both of them, and that there was no more indication of danger to Newton than to defendant. Newton does not testify that he called upon defendant to protect him against the threatened attack, but his warning to defendant was to look out for the deceased, who had a gun. While this court has not refused to consider errors alleged in failing to instruct the jury as to any so-called defense relied upon to negative the criminality of the act charged, where no instructions have been asked on the subject in behalf of defendant, yet where, as here, instructions are given directly covering, in a general way, the subject-matter of a defense, such as that of self-defense, relied upon by defendant, we feel that we ought not to reverse because the court does not cover every peculiar circumstance relied upon, where no instructions are asked for the defendant calling the attention of the court to the peculiar phase of the evidence which the defendant wishes to have emphasized. We are satisfied that the jury could not have been misled into thinking that the defendant would not have had a right to defend his brother under the circumstances, if his brother were in peril from the assault of deceased. The peril, if any, was a joint peril, and as to that the instructions were adequate.

II. At the conclusion of the evidence there was a motion for defendant to withdraw from the consideration of the jury the charge of murder in the first or in the second degree, for the reason that there was not sufficient evidence to sustain a verdiet for either degree of murder. Error is assigned in the overruling of the motion, and in submitting to the jury the question whether defendant was guilty of murder in the first degree. As it is practically conceded that defendant intentionally struck the deceased with an instrument which, as used, was a deadly instrument, and caused his death, there can be no doubt of the propriety of submitting to the jury the question as to murder in the second degree.

But it is contended that as to the first degree there ' was error, because there was no showing of deliberation and premeditation such as would sustain a conviction for that degree of murder. It is well settled that premeditation and deliberation need not exist . . a0r anJ Partieular length of time before the killing to warrant a conviction for the first degree. State v. Fuller, 125 Iowa, 212; State v. McPherson, 114 Iowa, 492, and cases cited. This court has never held that the trial judge could be required by motion to enter into a critical examination of the evidence, where the proof tended to show homicide by violence, with malice aforethought, for the purpose of determining whether in his opinion the act was deliberate and premeditated. There might perhaps be cases where the circumstances of the homicide were such as that the court could say, as a matter of law, that there -was uo evidence of deliberation and premeditation, but such cases would be exceptional. Where the defendant has selected a deadly weapon, and with opportunity to deliberate has intentionally used it in a deadly manner, it would not, we think, be proper for the court to take the question of deliberation and premeditation from the jury. That under such circumstances it is proper to submit the question of first degree to the jury, although there is no specific proof of deliberation and premeditation, apart from the proof of the violent infliction of a mortal wound, has been affirmed by this court on several occasions. See State v. Jackson, 103 Iowa, 702; State v. Wood, 112 Iowa, 411; State v. Fuller, supra.

There is nothing in this case to take it out of the usual rule in this respect. The jury in fact found the defendant guilty1 of felonious homicide without malice aforethought, but that does not, in itsélf, show that it was not properly left to the jury to determine under «the evidence whether there was such intentional killing as to constitute the second degree of murder, or such deliberation and premeditation as to establish the first degree.. We have held it to be error to submit the question of murder in the first degree where the indictment does not properly charge murder in that degree, even though the jury may have found the defendant guilty of manslaughter only. State v. Andrews, 84 Iowa, 88; State v. Boyle, 28 Iowa, 522; State v. Knouse, 29 Iowa, 118. But- we think it would be introducing a wholly unnecessary complication into the trial of prosecutions for murder if we should hold that the trial judge must, at his peril, before submitting a charge of murder in the first degree to the jury, determine whether under the evidence a conviction of murder in that degree could be sustained, and this would certainly be true in a case where the fatal blow was intentionally struck. We have no hesitation in reaching the conclusion that the court committed no error in submitting to the jury the question whether defendant was guilty of murder in the first degree as charged in the indictment.

III. Complaint is made of a portion of the argument of counsel for the prosecution to the jury, on the ground that the attention of the jury was thereby called to the fact that defendant was not a witness *n his own behalf, in violation of the prohibition found in Code, section 5484. Without setting out the remarks of counsel complained of, it is sufficient to say that we find therein no allusion to the fact that defendant did not testify as a witness. The most that can be claimed for the remarks of counsel is that the jury might have deduced therefrom, by way of remote inference, the conclusion that some- of the facts insisted upon by counsel as having been established by the evidence might have been negatived by the testimony of defendant if he had gone on the stand. But this court, while strictly applying the statute in every case, has not found it necessary to reverse because of the possibility of such remote inference. State v. Kidd, 89 Iowa, 54; State v. Seely, 92 Iowa, 488; State v. Davis, 110 Iowa, 746; State v. Snider, 119 Iowa, 15; State v. Hasty, 121 Iowa, 501. We are satisfied under these authorities that there was no ground of reversal in the remarks of counsel set out in this record.

IV. In one of‘the instructions the jurors were told, in substance, that if they should find from the testimony that defendant did inflict a wound upon deceased which caused, or contributed to, his death, the state would not be required to show that . . . neither the deceased, nor any one m attendance upon him, was guilty of negligence in the care and treatment of such wound. This instruction is complained, of on the ground that the court omitted to say that the jury must find from the testimony, beyond a reasonable doubt, that defendant inflicted the wound. This criticism is entirely without merit. The question of reasonable doubt was fully presented to the jury, and the instruction referred, not to the finding as to defendant’s guilt in the infliction of the wound, but only to the question whether the wound was the proximate cause of the death resulting.

In another instruction this language was used: “As I have already told you, .if the evidence justifies, you may convict the defendant of murder in the first degree, or of murder in the second degree, or of manslaughter, as you may find from the evidence, heyond all reasonable doubt, he has been proven guilty of the one or the other of such offenses.” The criticism of this language is that it tended to indicate to the jury that the evidence established, beyond a reasonable ,doubt, the guilt of defendant 'of some one of these three forms of criminal homicide. It is conceded that, if the ' court had substituted “if you find from the evidence,” instead of “as you may find from the evidence,” the instruction would have.been free from error. We think it is plain that the jury could not have been misled in this respect, in view of the othér portions of the charge, in which the jurors were plainly told that they could only convict of any form of criminal homicide on evidence establishing that particular form of which they should find the defendant guilty beyond a reasonable doubt. We would not be justified in resorting to a mere surmise of possible misunderstanding of a particular phrase, where the entire charge, read as a whole, is clear and unmistakable in its meaning.

Finding no error in the record, the judgment is affirmed.  