
    The State v. Havercamp.
    1. Criminal Law: homicide: deoree of crime. Evidence considered and held insufficient to sustain a verdict for murder in the second degree.
    
      Appeal from Ifuscatine District Gourt.
    
    Thursday September 23.
    Indictment for murder. Trial by jury, verdict guilty of murder in the second degree, and judgment. The defendant appeals.
    
      
      Cloud da Cloud, for appellant.
    
      J. F. McJunhm, Attorney General, for tbe State.
   Seevers, J.

This cause was before tbe court at a former term, and on motion of tbe attorney general tbe evidence was stricken from tbe abstract, but it was ordered tbe cause should be resubmitted. 5 3 Iowa 737. Tliis bas been done and tbe evidence is now properly before us.

It appears therefrom that Paul Iiergit, a brother of tbe deceased, bad some difficulty with one Butz, or rather tbe latter so claimed, but this was satisfactorily settled. About that time tbe defendant came to where Paul Iiergit and Butz were and inquired of tbe latter whether tbe former was tbe fellow who wanted to whip him. Butz responded “yes, but it was all settled.” Tbe defendent then said, “whip him any way — the son of a bitch that wants to whip Johnnie Butz must whip this son of a bitch.” Paul Iiergit made efforts to get away, but tbe defendant prevented this by walking in front of him. lie put bis band in bis pocket and pulled out something and testified it was a key, but there was some evidence tending to show it was a knife.

Tbe deceased came to where tbe parties were, and inquired of bis brother what they bad been doing to him, and be was told. Tbe defendant inquired, “what does tbe son of a bitch want,” whereupon the deceased “pulled off bis coat and went for” tbe defendant. Whether tbe deceased struck tbe defendant should possibly be regarded as uncertain. Tbe only person who so testifies being, we believe, tbe defendant. Tbe result was tbe latter ran some distance and tbe deceased after him. Tbe latter overtook tbe former, and they were next found on tbe ground, scuffling, tbe deceased being uppermost. While in this position, tbe defendant stabbed or cut tbe deceased four times, from tbe effects of which be died in a short time. Tbe defendant, at some time during tbe melee, received a slight cut or bruise on his bead or face, which was probably inflicted by tbe deceased.

The foregoing is a fair statement of the material evidence, except that the defendant testified somewhat differently, the tendency of which was to justify him in what he did.

It is urged the evidence is not sufficient to sustain the verdict, because it appears therefrom the defendant acted in self defense, and was justified in so doing. Or, if this is not true, that, at most, he is guilty of manslaughter only.

The defendant and the deceased had no previous acquaintance. The affray was in the evening or early night time. The facts in the case bear, at least, some resemblance to those in The State v. Thompson, 9 Iowa, 188, which was an indictment for manslaughter. We think it was for the jury to say whether the assault made by the deceased was felonious, and whether the defendant was justified in using a deadly weapon to protect himself from great bodily injury.

There was no evidence warranting the conclusion the deceased was armed. He, however, pursued the defendant when the latter was rapidly retreating, and the fair inference is that, when he overtook him, he, by some means, threw the defendant down, and was attempting to beat and injure him.

Under these circumstances the knife was used. The occasion for its use was sudden, when the blood was heated, and during an actual conflict.

The pursuit had extended for some thirty or forty yards, and the defendant did not know his assailant, or whether he was armed or not. We do not believe the defendant is guilty of murder in the second degree, but, at most, of manslaughter only. A new trial should have been' granted. There is no other error in the record.

Reversed.  