By rejecting the second degree or lesser offense, we fail to see how defendant was then prejudiced by a failure to submit manslaughter, a lesser offense than second degree murder. "We so held in State v. Troy . . . 206 Iowa 859, 866 [ 220 N.W. 95, 98, 221 N.W. 370], in the following words: 'Appellant complains that his request for instruction on the law of manslaughter was not granted. . . . He [the court] also submitted the question of defendant's guilt of murder in the second degree.
The rule is well settled in Iowa that the court need not and should not instruct on manslaughter when the record reveals no element of such offense. State v. Woodmansee, 212 Iowa 596, 616, 233 N.W. 725; State v. Troy, 206 Iowa 859, 866, 220 N.W. 95. It is the State's contention that under the evidence the jury could only have found defendant guilty of first-degree murder, second-degree murder, or not guilty. It contends the element of the crime of manslaughter was entirely lacking. We must agree.
" In State v. Troy, 206 Iowa 859, we again announced: "`Premeditation and deliberation need not exist for any particular length of time before the killing, and may be proved by circumstantial evidence.'"
We have followed the general rule that the jury's rejection of a greater-included offense negates a defendant's claim of prejudice due to a trial court's failure to submit an instruction on a lesser-included offense. See State v. Nowlin, 244 N.W.2d 591, 596 (Iowa 1976); State v. Drosos, 253 Iowa 1152, 1164-65, 114 N.W.2d 526, 533 (1962) (citing State v. Troy, 206 Iowa 859, 866, 220 N.W. 95, 98 (1928)). It is true that we did not follow this rule in Mikesell; however, we reasoned that prejudice was present because submission of the omitted lesser-included offense was the only opportunity for the jury to consider defendant's theory of defense. As indicated previously in this case, defendant did not rely on simple assault as a theory of defense.
State v. Drosos, 253 Iowa 1152, 1164-1165, 114 N.W.2d 526, 533 (1962) and authorities. See State v. Troy, 206 Iowa 859, 866, 220 N.W. 95, 98 (1928). VII.
We think the court erred in those rulings but are not convinced it was reversible error. It is well established that the exclusion of evidence tending to show a certain fact where the fact in question is fully established by other admitted evidence is not error. State v. Troy, 206 Iowa 859, 220 N.W. 95, 221 N.W. 370; State v. Bading, 236 Iowa 468, 478, 17 N.W.2d 804, 810; State v. Myers, 257 Iowa 857, 862, 135 N.W.2d 73, 76. Except for the exclusion of the witness Gatewood's voluntary statement and appellant's own attempt to testify regarding decedent's prison record, we find no other specific instance set out or argued, and we conclude her assignment of error based upon the court's failure to accept all her evidence tending to prove decedent's bad character and her fear of him is without merit. The witness Jacqueline Higgins testified she was well acquainted with both parties, knew they drank alcoholic beverages, and that she had seen decedent make physical attacks on defendant, the last time being in December 1966.
Hence, the jury would doubtless not have convicted of any lower offense, had such instructions been given. It follows defendant was not prejudiced by the refusal of the court to instruct upon offenses less than manslaughter. State v. Crutcher, 231 Iowa 418, 421, 1 N.W.2d 195; State v. Smith, 215 Iowa 374, 380, 245 N.W. 309; State v. Troy, 206 Iowa 859, 220 N.W. 95, 221 N.W. 370; State v. Woodmansee, 212 Iowa 596, 616, 233 N.W. 725. [12] VII.
In instructions on this subject frequently the word "particular" precedes the expression "length of time" in the clause which immediately follows the first italicized portion, but its omission is not error. State v. Dong Sing, 35 Idaho 616, 208 P. 860, 862; 1 McClain on Criminal Law, section 329. That malice is correctly defined and explained in the instruction, see State v. Emery, 236 Iowa 60, 64, 65, 17 N.W.2d 854, and authorities cited; State v. Woodmansee, 212 Iowa 596, 619, 233 N.W. 725, and cases cited; State v. Troy, 206 Iowa 859, 865, 220 N.W. 95; 40 C.J.S., Homicide, section 14; 26 Am. Jur., Homicide, sections 40, 41; 26 Words and Phrases, Perm. Ed., 199, 200. [11] VIII. Instruction 8 defines willful, deliberate, and premeditated. Defendant challenges especially the last paragraph of the instruction, which states that for a killing done with malice aforethought to be willful, deliberate, and premeditated does not mean the killing must have been conceived or intended for any particular length of time before the act is done; the will or purpose to do it, the deliberation and premeditation, and the killing may follow each other as rapidly as successive impulses of thought of the human mind.
Further, the rulings were without substantial prejudice to defendant since the facts sought to be elicited were clearly shown by other witnesses, including the deputy sheriff, and by several enlarged photographs showing the bruises on defendant's face. State v. Johnston, 221 Iowa 933, 940, 267 N.W. 698; State v. Troy, 206 Iowa 859, 869, 220 N.W. 95, 221 N.W. 370; State v. Schumann, 187 Iowa 1212, 1219, 175 N.W. 75. [4] III. Defendant complains that the cornstalk with the bullet hole in it, heretofore referred to, was received in evidence over his objection that it was immaterial and irrelevant and there was insufficient foundation for its admission. It is argued there is no evidence that the hole in the stalk was made by a shot fired by defendant nor that the bullet struck Olson or caused his death and that the exhibit was too conjectural and speculative to be received.
Premeditation and deliberation need not exist for any particular length of time before the killing. State v. Troy, 206 Iowa 859, 220 N.W. 95. We stated in the case of State v. Woodmansee, 212 Iowa 596, l.c. 611, 233 N.W. 725, 733, where the defendant has selected a deadly weapon, and with opportunity to deliberate has intentionally used it in a deadly manner "`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.'"