State v. Bruntlett , 240 Iowa 338 ( 1949 )

The defendant was charged in an indictment returned by the grand jury of Pottawattamie county with the crime of first-degree murder. It was therein alleged that the defendant, C.R. Bruntlett, on or about the 8th day of December, 1947, while in the perpetration or the attempt to perpetrate the robbery of Percy Smith, wilfully, deliberately and with malice aforethought killed him. The defendant later entered a plea of guilty. The court thereafter heard evidence for the purpose of ascertaining what the punishment should be. A sentence of death by hanging was imposed. The defendant has appealed from the judgment entered.

It is our duty, under section 793.18, 1946 Code, to examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands. We have carefully scrutinized the entire proceedings and the evidence presented. Because of the imposition of the death penalty by the trial court we deem it advisable to set out a summarization of the matters presented to the trial court, as a basis for our ultimate consideration of the entire record, as well as the grounds submitted to us for our review.

The appellant was taken into custody on the day following the commission of the crime — December 9, 1947. On December 13, 1947, he admitted killing Smith under circumstances hereinafter related. The indictment was returned on January 8, 1948. On January 10, 1948, the appellant appeared in court with an attorney other than the one who later represented him in the trial court and entered a plea of "not guilty." He and his counsel were informed there would be an assignment of jury cases made on January 17, 1948. The case was assigned for trial for February 3, 1948.

It is shown by the clerk's transcript that on January 29, 1948, the appellant through his counsel, who now appears in this court in his behalf, filed a motion for continuance wherein it was stated that his attorney had been appointed during the midafternoon of January 27, 1948; that prior to said time appellant and his counsel had never known each other and had never conferred about the charge then pending. It was therein further stated that the crime charged was a serious one; that it would require a large amount of research and considerable time in investigating the various phases of the case on the part of his attorney; that the appellant was held without bail; that interviews between the appellant and his attorney were difficult and that it would be in the interests of a fair and impartial conduct of the trial if said cause was continued until the next term of court. The application for continuance was denied.

On February 3, 1948, the date on which the case against the appellant was set for trial he and his counsel appeared in open court where the appellant stated he desired to change his plea of "not guilty" to that of "guilty" to the charge of murder in the first degree; that he had been fully advised by his counsel as to his legal rights and that he had determined for himself to make such change in his plea. The court then set the next day, February 4, as the time when both the State and the appellant could make such showing as they desired "for the purpose of assisting the court in determining the punishment and the degree of murder to be adjudged against the defendant." The court passed sentence and judgment on February 9, 1948.

The appellant at the time of the commission of the crime charged was a farmer fifty years of age and married. On or about November 30, 1947, he borrowed a .22 caliber rifle and seven shells from one of his neighbors. On the Friday prior to December 8, which would be December 5, he went to the home of Percy J. Smith and conferred with him. Earlier on this day and at a time when Mr. Smith was not at home the appellant had been at the Smith residence and made inquiry of Mrs. Smith if her husband would be interested in the purchase of some cattle. On Monday, December 8, he returned and he and Mr. Smith left about seven o'clock in the morning. Later that day Mrs. Smith received a telephone call from Omaha and a man who identified himself as Lundgren informed her that her husband had gone to Kansas to buy cattle and would be back in two or three days.

By reason of the absence of Mr. Smith officers were called to investigate. It is shown the appellant cashed a check for $9800 drawn on the account of the deceased on which check there had been written "for sixty head." During the investigation the appellant informed the officers that he purchased the cattle he claimed to have sold to Smith at Norfolk, Nebraska. As a means of investigating this phase of the case, the sheriff and a special agent of the Iowa Bureau of Criminal Investigation drove to Norfolk on December 13. While these parties were there, according to the testimony of Max Studer, the special agent, the appellant admitted to him the following facts: That the story about the sixty head of cattle which he was supposed to have bought at Norfolk, Nebraska, on Saturday, November 29 was false; that he had made up that story to get Percy Smith to his farm; that he, the appellant, had lost a considerable amount of money gambling during the past three years, particularly during the past three months; that he had purchased a farm near Creston on which he owed a $5000 payment on February 1, 1948; that he picked Percy Smith as a person from whom he could obtain money because he knew he was worth a considerable amount of money; that on Friday, December 5, he had gone to the Smith home to confer with Mr. Smith but he was not there during the morning which necessitated his return during the afternoon; that they talked about cattle and Smith said he would come out early Monday morning to look at the sixty head which Bruntlett had; that Bruntlett stated he would come and get him; that he did so about seven o'clock on that day; that they went to the appellant's farm where he had some cattle in the yard and out in the field. Appellant further related in his admissions to the witness, Studer, that he was desperate for money and that he told Smith he knew he had a lot of it; that he took a .22 caliber rifle which he had in a small building and pointed it at Smith and threatened to kill him and forced him to make out a check for $9800 made payable to C.R. Bruntlett with a notation on it "for sixty head"; that Smith gave the check to the appellant and then grabbed the rifle and tried to get it away from Bruntlett but the appellant succeeded in keeping him from doing so; that Smith kept coming towards Bruntlett and he then fired and hit Smith in the forehead with the first shot; that Smith went down on his knees and appellant then fired a second shot which killed the deceased. The appellant then, according to the testimony of Studer and the admissions made to him, dragged the body to a near-by cob pile and covered it with cobs; that he next took kerosene and poured it over the blood which was near a stock tank and set it afire until he thought all the blood had burned; that he then started a fire of the cob pile and tried to burn up the body, along with some dead animals; that he used cobs, boards, sacks and kerosene to do the burning; that he had difficulty in keeping the fire burning and he kept adding kerosene. The appellant then, according to the testimony of the witness, Studer, further admitted that after his noon meal that day he drove to Omaha from which place he called the Smith home; that he told Mrs. Smith her husband had gone to Kansas and when asked who was calling he stated Mr. Lundgren; that he informed Mrs. Smith her husband would be gone for two or three days; that he next went to a trucking company located south of Council Bluffs and arranged to have them haul twenty-five head of steers that he had to Omaha that evening; that he then went to the Council Bluffs Savings Bank to cash the Smith check; that he had $1825 in cash on deposit; that he paid a $4460 mortgage on the cattle which he had sold; that he took out $2165 in cash and a certified check in the amount of $5000 and closed his account with the bank. He then returned home and found that the fire was low and a considerable amount of the body was unburned; that he then used a corn knife cutting it up so it would burn faster and put more kerosene on it. He then stated in his admission that after this had occurred Richard Smith, a son of the deceased, and the son's wife, came to the appellant's yard and he told Richard his father had purchased sixty head of steers from him and had taken them to Omaha and he had not seen him since; that after Smith left he then hurried the fire as fast as possible thinking that Richard Smith would return; that Smith and his sister did later return to the appellant's farm and at that time appellant was putting water on the fire; that after Richard Smith had left the second time the appellant scraped up the unburned small bones and the ashes and carried them over to the edge of a cornfield where he scattered them.

There is testimony of the neighbor from whom the appellant had borrowed the gun that on December 8, 1947, he saw a fire on the Bruntlett farm about 8:30 or a quarter of nine; that he still saw it burning about 10:30 (in the morning).

The witness L.H. Tyler, sheriff of Pottawattamie county, testified to the conversations he had with the appellant and of admissions made in his presence which were substantially the same as those related by the witness Studer. His details of the admissions by appellant relative to the killing of Smith are in substance as follows: That Smith made out the check and gave it to him (Bruntlett); that Smith then grabbed the rifle which Bruntlett held and tried to take it away from him but the appellant succeeded in keeping him from doing so; that Smith kept coming at Bruntlett and Bruntlett pushed him away two or three times and that as he came at him the third time he fired at him with the rifle and Smith went down on his knees; that he then fired the second shot. The appellant is quoted as saying, "that's the shot that killed him."

The appellant testified at the hearing in his own behalf although he gave no details of the killing. He did testify, however, that in 1933 he was sent to a mental institution in St. Peter, Minnesota; that he was later let out of this institution but about six months after he had been released from it he was returned. He was then transferred from the state of Minnesota to the hospital for insane at Clarinda; that he remained at the hospital at Clarinda for about five months. The records which were before the trial court and which have been certified to this court, show copies of the Clarinda State Hospital records concerning the appellant's condition which indicate that he was paroled on January 7, 1935, and that he was discharged as not cured but on parole.

The appellant's commitment and confinement in the Minnesota state institution justify setting out facts as to his prior activities. The information concerning his earlier years is disclosed in a written record of a mental examination made by two competent psychiatrists of Council Bluffs which was introduced in evidence. There were no objections to this report. It is therein disclosed that when he was twenty-three years of age he engaged in a bank robbery and was sentenced for this crime to the Anamosa State Reformatory for a life term; that his sentence was later commuted and after he had been in the reformatory for ten years and two months he was paroled. It is further shown that on or about April 7, 1933, he was charged with the crime of larceny of a team of horses in Noble County, Minnesota, and was sentenced to a term of two years in the state penitentiary of that state; that thereafter there developed some question as to the appellant's then mental condition, although as shown by records of the mental hospital there was some suspicion that he was feigning insanity. However, he was transferred to the state hospital for insane at St. Peter, Minnesota, where he was held for a certain length of time and then by reason of his Iowa residence was transferred to the state hospital for insane at Clarinda, Iowa. There is some evidence that during the time the appellant was in the state reformatory at Anamosa he had some form of facial paralysis. It is shown that at that time he was in the prison hospital for treatment. There was further evidence of his having received other hospital treatment in the reformatory not in any way connected with his mental condition. The trial court in commenting upon his mental condition made this statement:

"From the subjective symptoms and from observation the psychiatrist at St. Peter's Hospital in Minnesota had diagnosed him as having psychosis with other somatic disease and encephalitis. The record shows the defendant gave rather a definite history of having suffered an attack of acute encephalitis while in the Anamosa Reformatory in 1926.

"The only historical fact that the court is able to find in the record that would justify the diagnosis of encephalitis or a possible encephalitis comes from the hospitalization for diphtheria while in his own cell in the State Reformatory at Anamosa, Iowa."

The trial court prior to the imposition of the sentence had the benefit of a mental examination of the appellant by two competent psychiatrists in Council Bluffs to which we have previously referred. It was their finding that the appellant presented no particular paranoid ideas and did not demonstrate any delusions, hallucinations or ideas of reference. It was their further finding that the appellant did not have a psychosis and there did not seem to be any evidence of any recent psychosis since his discharge from the Clarinda State Hospital. The court at the time of the imposition of the sentence held that it was his judgment that the appellant was sane "and in a responsible condition of mind at the time of the commission of this crime on December 8, 1947 * * *."

The appellant contends that he should have been given a life sentence instead of the extreme penalty imposed by the trial court. As propositions of law he asserts (1) that the Supreme Court may reduce a sentence if it is too severe or disproportionate to the degree of guilt (2) that premeditation and malice are essential elements of the crime of murder in the first degree and, it is apparently sought to be claimed, that these elements are not disclosed by the evidence (3) that the weight or preponderance of the evidence shows the insanity of the appellant and consequently raises a reasonable doubt of his guilt.

I. It must be kept in mind that the appellant at no time pleaded as a defense that he was insane at the time of the commission of the crime. Likewise, no question was raised, at least by any pleading or oral statement presented in court, as to his mental condition at the time of the hearing on his plea of guilty. If appellant's sanity at the time of the proceedings in the trial court had been in doubt proper action should have been instituted to determine this question. Section 783.1, 1946 Code. However, the appellant in his appeal asks this court to review the decision of the trial court on its finding that appellant was sane. The question of his mental condition was discussed thoroughly by the trial court in its judgment and sentence even though that proposition was not raised in the manner provided by statute. The court's consideration of the possible insanity of the appellant at the time of the commission of the crime and subsequent thereto indicates its concern for the rights of the appellant.

[1-4] This court is not now in a position to pass upon the question as to appellant's possible insanity at the time of the commission of the crime for which he plead guilty. If insanity is to be interposed for the purpose of suspending proceedings in a criminal case it must be raised before the end of the trial. State v. Tracy, 219 Iowa 1412, 1415, 261 N.W. 527; State v. Cooper, 169 Iowa 571, 582, 583, 151 N.W. 835. The question was not presented during the trial except perhaps inferentially as a basis for a plea for a life sentence. The burden of proof is upon appellant to establish by a preponderance of the evidence a claimed plea of insanity. State v. Buck, 205 Iowa 1028, 1033, 219 N.W. 17; State v. Maharras, 208 Iowa 127, 130, 244 N.W. 537; State v. Harrison, 167 Iowa 334, 339, 149 N.W. 452; State v. Thiele, 119 Iowa 659, 660, 661, 94 N.W. 256. A presumption of sanity is not overcome by the fact in itself that an atrocious crime has been committed. State v. Buck, supra. If it can be said that a plea of insanity was raised by the appellant in the trial court we cannot hold that he has met the burden of proof of establishing his insanity at the time of the commission of the crime or subsequent thereto by a preponderance of the evidence. We further hold there is no merit, legal or factual, to the appellant's claim of insanity. Even if this question has been raised inferentially it cannot be held that a reasonable doubt as to his guilt by reason of his claimed insanity has developed unless this fact is shown by a preponderance of the evidence presented by appellant. State v. Brandenberger, 151 Iowa 197, 209, 130 N.W. 1065. This he has failed to do. If there is any doubt as to the appellant's present mental condition a statutory provision is provided for determining that fact. Section 792.5, 1946 Code.

[5, 6] II. Malice and an intent to kill may be inferred from the intentional use of a deadly weapon in a deadly manner. State v. Sullivan, 230 Iowa 817, 820, 298 N.W. 884. It has been the further holding of this court that upon a plea of guilty of first-degree murder it is necessarily presumed that the act was deliberate and premeditated. State v. Breeding, 220 Iowa 605, 608, 262 N.W. 467. Under the record we find and hold that malice and deliberation on the part of the appellant were shown in the commission of the crime.

[7] III. We would be justified in setting aside or reducing the sentence in the instant case only if there is a clear showing of an abuse of the court's discretion in imposing the maximum penalty. State v. Breeding, supra; State v. Tracy, 219 Iowa 1412, 1419, 261 N.W. 527, 531; State v. Grattan, 222 Iowa 172, 176, 268 N.W. 489. We find no abuse of discretion. The evidence amply shows the commission of an atrocious crime. Under all the record presented we find no justification for holding that the sentence was too extreme. If there is justification for clemency that is a matter for executive action. State v. Olander, 193 Iowa 1379, 1385, 1390, 186 N.W. 53, 29 A.L.R. 306. This court cannot set aside the decision of the trial court unless we find there has been error committed by it. State v. Griffin, 218 Iowa 1301, 1312, 254 N.W. 841. We do not find error.

[8] IV. Our examination of the entire record satisfies us that the rights of the appellant were fully considered, except perhaps in the failure to appoint an experienced attorney to represent appellant. But this failure is insufficient under the record here to justify interference by us. We think it proper to suggest, however, that in a case such as this it is well to appoint an experienced attorney for the accused. Of course we intend no reflection upon appellant's attorney here. It is evident that the trial court made a very thorough study of the evidence relating to the appellant's sanity. It prepared and filed a judgment entry which discloses a thorough consideration of all the questions which were involved in this case even though they may not have been formally presented to it. The proceedings at all stages were carried on with deliberation. Under the record as submitted and the prior holdings of this court, we find no justification for modifying or reducing the penalty imposed. We therefore affirm. — Affirmed.

MANTZ, C.J., and HALE and SMITH, JJ., concur.

MULRONEY and HAYS, JJ., specially concur.

BLISS, OLIVER and GARFIELD, JJ., dissent.