
    State of Iowa v. Frank Jackson, Appellant.
    1 Manslaughter: evidence. It appeared that after defendant and W had an altercation with deceased, and the latter became separated from them, they went into the street to meet him. There was evidence, though it was contradicted, that W urged that he and defendant get out of deceased’s way; that defendant opposed that course; and that, when they met deceased in the street, deceased was knocked down and stunned by defendant, and was pounded on the head by W, without any effort by defendant to interfere. Death was caused by the blow struck by W. Held, that the evidence supported a verdict of manslaughter.
    5 Included Offenses: instructions. Where an indictment charges murder in the first degree, and there is evidence showing the elements of that crime, it is not error to instruct as to murder in the first and second degrees, though a verdict of murder in either degree might be set aside as not sustained by the evidence; since it is only when the evidence, “without conflict,” does not prove the essential elements of the higher offense, that it is error to submit an issue as to it.
    4 Corroboration: instruction. An instruction given to the jury in a murder trial, that a'conviction could not be had on the uncorroborated testimony of an accomplice, is not erroneous in not specifying in what particular the evidence of such accomplice must be corroborated.
    3 Evidence: admissions. Where there was evidence of verbal admissions, it was not error to fail to instruct that verbal admissions should be received with great caution, where the statements were made deliberately and understanding^, in a conversation in which defendant’s purpose was to state the particular facts of his connection with the affray.
    
      2 Impeachment: instruction. There was some evidence, by way of contradictions, affecting the credibility of W, who was a witness for the state and defendant’s accomplice; and there was impeaching evidence directed to the general character of the defendant, who was a witness for himself, and of L, who was a witness for the state. The court charged that, if the general character of either of the two witnesses was bad, the jury should consider that fact only in weighing his evidence; and, that, if the jury found that the character of defendant was bad, that fact could rightfully be considered only in determining the weight to be given his evidence Held, that the charge was not open to the objection that the singling out of such two witnesses unduly emphasized the fact of the impairment of defendant’s credibility, leaving the inference that, if W was found to be corroborated in any particular, his credibility was unaffected.
    
      Appeal from Pottawattamie District Court. — Hon. Walter I. Smith, Judge.
    Wednesday, December 15, 1897.
    Indictment for murder of the first degree. Verdict of guilty, and a judgment thereon, from which the defendant appealed.-
    
    Affirmed.
    
      Sims & Bainbridge and D. B. Bailey for appellant.
    
      Milton Bemley, attorney general, and Jesse A. Miller for the state.
   Granger, J.

I. The defendant, Jackson, was indicted, jointly with-one Richard Wallace, for the murder of Richard Baker, a 'colored man, commonly known as Texas Baker, oh the night of November 4, or early morning of November 5, 1895, at Council Bluffs, Iowa. 'Some facts are without dispute. One John Webster, the defendant, and Baker, with many others, were in front of the Metropolitan saloon, on Broadway street, in said city, when an altercation arose between Webster and Baker because Webster had taken a. cigar from Baker’s mouth. Baker left the crowd, and crossed the street, and soon returned; and, as he had crossed the motor track that ran along the street, he was met by Jackson, who either knocked or pushed him down, so that he lay on his back, with his 'head' between the rails of the motor track, and, while in this position, he was struck by Webster with a club, in the face and on the head two or three time®, from which wound Baker died the followinig morning. Some facts, about which there i® a dispute, are these, as claimed by the state: During the altercation over the cigar, Baker put his hand on his hip, as if to- take from his pocket a weapon, upon which Webster said, “Look out, boys! He ■is going to shoot,” and started for the saloon door, when Jackson took him by the ‘arm, and said, “Hold on! I’ll see you through with it.” Baker was then returning from across the street, where he had picked up a couple of bricks, and Jackson and Webster left the sidewalk, and met Baker just as he had crossed 'the motor track. When within a few feet of Baker, Jackson said to Webster, “Let him come; I will stop him,” or “Let him come; I will fix him.” That Jackson stepped in front of Webster, iand knocked Baker down with has fists. That Baker fell “like a log,” his head striking the pavement first, after which he did not speak or move. That Jackson then rushed, to his head, and kicked him on the head or face. That then Webster- came up, and struck the blows with the club, while Jackson stood within four or five feet of him. That, after Webster had struck the blows, Jackson grabbed hold of 'him, and said, “Come on; let’s get out of here.” That they left together, and, when a short distance away, Jackson said, “I am going back, to clear myself with the people.” That he soon joined Webster again on a bridge, about a block from the scene, and they went on together, and Jackson tried to have Webster throw the club into the creek. That it was afterwards thrown into an alley, and there found, covered with hair and blood. That, as they proceeded to their homes, Jackson put his finger to Webster’s face, and said, “I never hit a prettier lick in my life.” Appellant’s version of the disputed facts is that they did mot occur as stated; that Webster made no such remark about shooting', and that Jackson did not take him by the arm and say, “Hold on! I’ll see you through;” that he did not advance toward® Baker with Webster, but alone, and only pushed Baker down when he drew the brick to strike and threatened to kill him; that he did not kick Baker, but that the kicking was done by one Roper; that, when he saw Webster striking Baker with the club, he rushed between Baker and Webster, and told Webster to stop, that he was killing him; and that he (Jackson) caught the third blow on his own leg, to save Baker. The other facts as claimed by appellant are also denied.

II. There is a strenuous- contention that the verdict of manslaughter had not support in the evidence. We do not think it is- contended that the death resulted from the blow struck by Jackson, but rather from the blows given by Webster with the club. The testimony of the physician who examined Baker before and after death is to the effect that death resulted from hemorrhage. The testimony would -clearly -sustain a finding that Baker was stunned, and temporarily helpless, from the blow given by Jackson, not, however, saying but that the testimony in that respect is in conflict. The argument -deals with the matter- of intent or motive on the part, of Jackson to do- the act. Neither motive nor intent is necessarily an element of the crime of manslaughter. It is true that, under the- facts of this -case, the fatal blows being given by Webster, there must have been the intention to do- an unlawful act, and that the act resulted- in the homicide-. The intent to do the unlawful act has a clear support in the evidence if so-m-e of the facts urged by the- state- are established. If it is true that when Webster -and Baker engaged in the quarrel of words, and Webster, apprehending that Baker was going' to shoot, sought safety by retreating from him, — which was. clearly the proper course to pursue, — Jackson intercepted him with the remark, “Hold on! I’ll see you through,” and then went into an affray with Baker and Webster, the intent to do the unlawful act is clearly manifest. That they did go into the affray is not a disputed fact, and we think a finding that they went into it under such circumstances lias support in the evidence, n twithdanding the conflict. It is true that the movements were not seen alike by all the witnesses, and this variance in the testimony is urged as discrediting the evidence to the effect that Webster and Jackson acted understandimgly in their movements, and in what they did. Particular stress is placed on the fact that some of the witnesses for the 'State sa,y that, when Webster came to Baker, he came from the west, instead of from beside Jackson, or near him, where some of the witnesses placed him. On the question of intent the variance is not material. That Webster was close by when Jackson struck the blow, intending to aid in an affray, is not to be doubted; nor is it to be seriously doubted that Jackson designed to .assist Webster in an encounter against Baker if he (Baker) should attack him. These facts, aided 'by the other, which the jury could have found, that Webster and Jackson invited the affray by going into it, rather than by avoiding it, quite conclusively fixed Jackson’s relation to the afla'r as >a pa.t'cipant with Webster in a purpose to do an unlawful act, Which resulted in the death of Baker. That such a state of facts would justify a verdict against Jackson, see State v. Mushrush, 97 Iowa, 444; State v. Munchrath, 78 Iowa, 268; State v. McCahill, 72 Iowa, 111; State v. Malow, 44 Iowa, 104; State v. Shelledy, 8 Iowa, 477. There is something of an attempt, in argument, to clothe the -act of Jackson, in going out to meet Baker, with a chivalrous rather than a criminal motive; that 'he generously exposed himself to danger in the interest of Webster or others in the crowd of people assembled there. Nothing is clearer to a disinterested reader of the record than that such was not his motive. It is in evidence, but disputed, that, when Webster and Baker were having words .about the cigar, Jackson said, “Why don’t you stop quarreling and go to- fighting?” and also that, as he 'and Webster advanced towards Baker on the street, Jackson ©aid to Webster, “Let him come; 1 will $jtop him.” It is true that the latter words might well be used by one about to act solely for the protection of others in a lawful manner, but the record here shows, rather, a disposition to bravado, and a desire to be foremost in the affray. We conclude that, under the state of the evidence, Ave have no right to disturb the finding of the jury.

III. The defendant was a witness in his own behalf, and one Lawson Avas a witness for the state. Impeaching evidence directed to the general moral character of each was admitted. The court, in an instruction, referred to such impeaching evidence-, and -directed that, if the jury found the general moral character of either to be bad, it should-take that fact into consideration in determining thte weight due to his testimony, and that the evidence could not be considered for any other purpose. The court then -said: “And, if you find that the general moral character of this defendant is bad, that fact can rightfully be considered by you only in determining the w-eight to be given his evidence, and it should not receive any weight aside from that in passing upon his guilt or innocence.” It is urged that, inasmuch as there was no dispute -o-ver the introduction of the testimony, the instruction could only 'be considered by the jury as a command to look with some distrust upon the testimony oí the defendant. There was some evidence, by way of contradictions, affecting the credibility of .Webster as a witness; and it is thought that the singling out of the two witnesses by the court “unduly emphasized- the fact of the impairment of the credibility of the defendant, leaving the inference for the jury that, if John Webster was found to be corroborated in the testimony that he had given, in any particular, Ms credibility as a witness was. unaffected.” It seems to us that the language of the instruction refutes the criticism. The instruction attempted to deal with the effect of impeaching evidence as affecting general moral character, and, in doing -so-, it made no distinction, but was general as to all witnesses, of that class. There seemed to be a manifest purpose in the instruction to guard the rights of the defendant from prejudice by strictly limiting the effect of the' impeaching testimony, and not permitting the fact of impeachment, if found, to weigh against the defendant otherwise than ■as affecting his testimony. Of that, appellant should not complain.

IY. One Lawson was a witness for the state, and gave testimony as to. admissions made -to him by Jackson while both were confined in jail. The testimony was as to what occurred at the time Baker was killed, and in some important particulars it contradicts Jackson’s testimony given on the trial. 'Appellant refers to Allen v. Kirk, 81 Iowa, 658, and - other cases, in which a rule has been stated to the effect that, as a general rule, verbal admissions of a party should be received with great caution, as that kind of evidence is subject to imperfections and mistakes; and it is urged that it was error for the court not to. caution the jury in regard to the testimony of Lawson. The same authority that announces the above rule also holds that such admissions of a party to a suit, when made understandingly and deliberately, often afford satisfactory evidence. The reason for the general rule is that such admissions often come from loose and random 'conversation, without a purpose to express wbat the hearers may understand. Conceding Lawson’s statements to be true, the statements by -Jackson seem to have been made deliberately and understandingly, in a conversation in which hi® purpose was to state the particular facts of Ms connection with the affray. Under •such circumstances, we do not think a failure to caution the jury in 'the respect suggested involved error.

V. In an .instruction, the court gave the statutory rule that a conviction could not he had on. the testimony of an accomplice without corroboration, and that the corroboration was not sufficient if it merely showed the commission of the offense or the circumstances thereof. Webster was. the accomplice, and a witness, and it is said that the court should have gone further, and enlightened the jury as to the particular feature of the case' in which Webster should have been, corroborated. The corroboration, under the statute, must have 'been such as would tend to connect the .defendant with the commission of the offense charged, and the jury was so told. The instruction placed upon the jury the statutory limitation that the corroboration could not come from facts that merely showed the commission of the offense or the circumstances thereof, and then left it to the jury to say whether or not there was corroboration in the other evidence. We think such an instruction, conforms to the requirements of the law. That other evidence did so tend is not open to question. It may further be said that the instruction, at the time of the trial, seemed to be so satisfactory that no' modification of it was asked,

VI. The indictment was for murder of the first degree, and the court submitted the ca,se to the jury upon instructions as to the crime charged and all degrees of crime included therein; and it is now urged that it was error to. instruct upon the crime of murder of either degree, because the evidence is so clearly insufficient to sustain a verdict for murder that a court could nbt permit such a verdict to stand. It is conceded in (argument that there has been an acquittal of the crime of murder, because of the verdict of manslaughter. In State v. Kyne, 86 Iowa, 616, we held that under an indictment for rápe, — ■ and there was a conviction only of an assault with an attempt to commit rape,- — it was error to put the defendant on trial for the higher degree of the crime when the evidence showed, without conflict, that all the essential elements of the crime had not been proven. It is thought that rule should apply to this case, but we think not, for the reason that it does not appear Avithout conflict in this case that defendant was not guild of the higher crimes. We have not held that in a case where we might set aside a verdict for a higher crime,.as. not sustained by the .evidence, it Avould be error for the trial court to submit to the jury the issue as to such crime; but whin, Avithout conflict, the essential elements of a crime .are not proven, it is error to submit such an issue. We are far from believing that there 'is no evidence in this case tending to show the elements of even murder of the first degree: There is evidence tending to show an understanding with Webster to go into the affray; that Jackson knocked Baker down, and rendered him helpless; that he stood by and saw Webster give the fatal blows, after he had felled the victim, Avithout a word of dissent or protest, until he thought Baker Avas dead, when he said to Webster, “Go on now; yon have killed Mm,” and suggested making their escape. These are facts tending to show deliberation, premeditation, and malice. Even though other evidence might so- outweigh this as to- require a court to set aside a verdict for ian offense Mgher than manslaughter, it was not error for the court to- submit to the jury the issues presented by the indictment and plea as to murder. The.judgment will stand affirmed.  