Opinion
Clinton E. Shaeffer and John B. Reilly, Cedar Rapids, for appellant.
Leo A. Hoegh, Atty. Gen., of Iowa, R. R. R. Dvorak, Asst. Atty. Gen., Willis A. Glassgow, County Atty. of Linn County, Cedar Rapids, Richard Nazette, Asst. County Atty., Cedar Rapids, for appellee.
PER CURIAM.
The appeal is before this court on a Clerk's Transcript of the record in the district court supplemented by a typewritten 'Brief and Argument' and 'Statement of the Case' by appellant's attorneys. As stated therein, the 'Question Presented By Appeal' is the proposition that 'the unreasonable severity and harshness of the sentence of appellant to the extreme penalty of life imprisonment as punishment for second degree murder, is not warranted by the evidence.'
Set out in this typed presentation is the court's statement in passing sentence, to wit: 'The jury must of necessity, have found that what you did at the time in question, you did intentionally; shot and shows that you, with a shotgun, shot and killed a human being and that you shot intentionally; and in the very nature of things it would appear then that you killed intentionally. It needs no statement by the Court that that is most serious. Now, as a very material consideration here, too, we considered your prior record, including all the evidence, and under any point of view that record must weigh in this proceeding very heavily against you. The record shows that you have been in the penitentiary * * * twice before * * *; the record shows that since you were twenty- one (21) years of age you have spent almost one-half of your life in the penitentiary; the record shows previous acts of violence, which have been committed by you, such as robbery with a gun. Considering everything, and I assure you, gentlemen, that the Court has given this matter very serious consideration, your past record, the severity of the crime which was committed here, the fact that your history shows a disposition and character of violence and law-breaking, the Court feels that it has no alternative but to impose here a sentence of life imprisonment from the standpoint of meting out a sentence, which, under all circumstances, is consistent with the crime committed.'
His counsel state that appellant, had a long history as an alcoholic and a heavy drinker of intoxicating liquors. Of his prior record, they state: 'The evidence shows * * * that the defendant's previous record consisted of a five-year sentence at Fort Madison for larceny of domestic fowl, and ten months in the Linn County jail for taking a car without the owner's consent, and on both of said occasions the defendant was so drunk that he did not remember having done either of these acts. That on the later occasion, after an extended bout, the defendant wrote a check for ten dollars and left it with a bartender who turned it over to the sheriff and the defendant was charged with forgery. At the same time the forgery charge was filed against him he was charged with stealing an automobile and with robbery, and received three ten-year sentences, a total of thirty years in all.'
Of the events leading up to the tragedy of December 9, 1952, appellant's counsel state: 'The record shows that defendant first met the deceased, Pauline Kassell, in June 1952 at a Cedar Rapids tavern. From that time on the appellant and the deceased spent many days and nights drinking together. Both appellant and deceased were heavy drinkers and they frequented the taverns, the tourists courts and appellant's home at 1901 Cold Stream Avenue, over the period from June to December 9, 1952. The evidence shows that on December 9, 1952, the appellant met the deceased at a tavern and after a few hours of drinking by both they proceeded by taxi-cab to appellant's home. The evidence further shows that pursuant to a plan by the deceased and appellant to go rabbit hunting the next day they digressed to the trailerhome of one Robert Greenlee, to whom the appellant had previously sold his 410 gauge shotgun, for the purpose of borrowing the gun to go hunting. * * * The pair arranged for the cab to return for them in a couple of hours and went on into the home at 1901 Cold Stream Avenue. The appellant admitted he put the gun together and attempted to instruct the deceased in handling the gun but did not remember anything further.
'At 4:36 P.M. on December 9, 1952, the Cedar Rapids Police Department was notified by a telephone call from the appellant that someone had been shot and the police found the deceased, Pauline Kassell, lying on the floor with a fatal shotgun wound under her left armpit and the appellant bleeding from a hole through his left breast caused by a shotgun blast.'
The State introduced evidence of police officer, Gale R. Long that appellant telephoned the police station 'to send a squad car to 1901 Cold Stream Avenue North' and said 'I just murdered a woman out there.' Officer Long testified that he immediately notified officer, Captain John Kuba, that 'a man by the name of Charles Kotek just called in and said he murdered this woman at 1901 Cold Stream Avenue.' Captain Kuba gave similar testimony, and he and others testified to the conditions they found at the appellant's home on arriving there and of repeated admissions of appellant there and at the hospital that he had shot the deceased.
Counsel for appellant further state: 'There is no evidence whatever of premeditation, no evidence of motive, no evidence of any argument or scuffle, such as to indicate that defendant killed in the heat of passion. * * * There is uncontradicted evidence that they had been examining the gun * * *. There is uncontradictable evidence that they were carrying on an illicit but firmly established love affair, that they were not quarreling, that they did not usually quarrel. * * * That defendant's evidence is that he shot himself while in a state of confused, drunken shock for the reason that having been a two-time loser that probably no one would believe that the deceased was accidentally shot.'
We have examined the Clerk's Transcript carefully. The trial court instructed the jury fully and correctly, including the defensive issues of intoxication and accident, and the issue of circumstantial evidence. The instructions requested by defendant were given or fully covered by the court's instructions. The evidence supporting the issues urged by both the State and the defendant was fully presented to the jury. The verdict of the jury is sustained by the evidence.
The able and experienced trial court was better situated to rightly appraise all factors bearing upon the determination of a just judgment, than is this court. It is our conclusion that the judgment entered should not be disturbed.
We find no reversible error in the record and the matters presented.
The judgment is therefore affirmed.
Affirmed.