#### The State of Iowa v. Louis Busse, Appellant.

1 Confessions. Where -a confession is offered in evidence, the accused is entitled to have his entire statement produced before the jury.

2 Intoxication as a .defense: instructions. The mere ffict that defendant drank liquor shortly previous to the commission of the crime charged, was not such evidence of intoxication as to require its effect upon his mental condition to be submitted to the jury.

*3193 Misconduct: argument. On a prosecution for murder, it was not misconduct for the state’s counsel to relate in argument an instance where a minister killed his wife where in response to argument of defendant’s counsel that accused was a member of the church, or to illustrate the slight motive sometimes impelling crime, or to comment on the depravity of the murderer; but the relation of an instance in which a member of the panel which acquitted a defendant took part in afterward lynching him, while not reversible error, was improper.

4 Murder: manslaughter: instructions. On a prosecution for murder, the instructions of the trial court in relation to murder and manslaughter are reviewed and sustained by opération of the statute, the court being equally divided, oyer the objection that the same set forth simply the general and abstract propositions of law, without making a specific application of the law relating to manslaughter to the proven facts.

Opinions by Justices Sherwin and Ladd.

*Appeal from Bremer District Court.*— Hon. O. H. Kelley, Judge.

Wednesday, July 13, 1904.*

The defendant was convicted of murder in tbe first degree, and sentenced to be banged. He *appeals.*

Affirmed.

*W. 8. Montgomery*and *Gibson & Dawson,*for appellant.

*Chas. W. Mullan,*Attorney-General, *Chas. A. Yam, YlecTc,*Assistant Attorney-General, *C. G. Burling,*and *J. H. Scales,*for tbe State. • *

This and following eleven cases are published out of chronological order because delayed by applications for rehearing.

ShebwiN, J.

Tbe defendant and Lena Cassman were married in tbe latter part of tbe year 1900, be at tbe time being a widower with two small children. After tbeir marriage they lived on a farm in Butler county, Iowa, where be killed her on tbe 18th day of June, 1901. Tbeir married life, though short, bad not been an altogether happy one, for they were both of hasty temper, and frequently quarreled over *320unimportant matters, and in some of tbeir quarrels tbe defendant assaulted Ms wife. On the day of tbe wife’s death tbe family consisted of tbe husband and wife, three small children, and Henry Schneider, a young man about seventeen years old, who had lived with the defendant for several years. They had dinner at about twelve o’clock and immediately thereafter the defendant, Schneider, and the two oldest children went to the barn, where they had been but a short time when the defendant directed Schneider to take the two children and the gun and go out to the road and shoot robins. Schneider went as directed, taking the children with him. Tie walked slowly west on the road a quarter of a mile, and then started back. When he had gone a short distance, he heard two loud screams near the barn, and looking in that direction, he saw the defendant and his wife standing close together between the house and the barn. He paid no further attention to them, but continued on his way back, and when he reached the barn the defendant was there alone, and Schneider says that he then noticed a “ big spot of blood on his shirt sleeve.” Shortly after this the defendant sent Schneider to a neighbor’s a half mile distant, and upon his return the two worked together around the barnyard for perhaps an hour, when Schneider was again sent away with the children and the gun. Before his return from this last trip the defendant joined him in the field, where they spent a little ■time togethei, and then started back towards the buildings. Soon thereafter they saw Frank Busse, a brother of the defendant, who lived a mile away, come out of the defendant’s house with Mrs. Busse’s child in his arms, and he hallooed to them that the house was on fire. When they reached the kitchen, they found the dead body of Mrs. Busse lying near the middle of the room, covered with feathers, and horribly burned. On the right side of the neck, extending from back of the ear down under the right lower jaw to about the median line, there was a superficial gash which exposed the coratid artery. The autopsy disclosed that the left molar *321bone was broken from tbe frontal bone and from tbe superior maxillary. Tbe zigomatic extension where it connects with tbe temporal bone was broken off. Tbe mastoid process was crushed in, and tbe point broken off, and tbe temporal bone loosened. Tbe testimony showed that tbe gash on tbe throat could not have produced death otherwise than by excessive hemorrhage, and that was not proven. Tbe injury to tbe mastoid process might alone have been fatal, while tbe other injuries to tbe bead were not of so serious a nature. Whether all of these injuries might have been produced by one blow would probably depend somewhat upon the kind of instrument used, and the evidence is in some conflict as to whether they could have been so inflicted, though the weight thereof may perhaps be said to show that they could not.

After the defendant had been charged with the murder of his wife, and while he was confined in jail, he made a confession to the sheriff of the county, in the presence of others, in which he stated that after Schneider and the children had gone down the road to shoot robins, his wife went out to the barn, where he was, and began to find fault with his relatives; that he finally asked her, “ What is the matter with you anyway ?” and at the same time reached for a pail of feed, as if he were going to throw it at her; that she thereupon screamed and ran to the house; that he followed her there, opened the door, and that, as he stepped inside she struck him with a chair over the head; that he then *“*went wild, caught the chair away from her, or another chair, and struck her over the head.” He stated also that he poured kerosene oil over her body and set it afire; that he cut her throat with his jackknife; and that he “ did the whole thing.” This confession was reduced to writing by one of the persons present, and when completed it was read to the defendant and was signed and sworn to by him. TJpon the trial the writing was not offered in evidence, nor was there any reason given for not offering it. The State was permitted, how*322ever, to prove tbe statement of tbe defendant by parol testimony. No objection was made to the testimony on this ground, nor was there any objection to it on the ground that the whole of the confession was not given to the jury.

1. Confessions. It is a fundamental rule that the defendant is entitled to have “ all he said on the one occasion, the exculpatory with the inculpatory statements, produced before the jury.” 1 Bishop on Criminal Procedure, section 1241. jn(jee(^ ru]e n0£ questioned by the State. It is contended by the appellant, however, that it devolves upon the State to produce the whole confession, and that a part thereof cannot be received. As we have already seen, this question is not in the case, but, if it were, we should hold that the record clearly shows the whole confession to have been produced before the jury by the State, which we may say, without definitely deciding the question, we consider the better rule. Neither should we, in the condition of the record, pronounce definitely upon the admissibility of parol evidence of a confession when it is shown to have been reduced to writing, and to have been signed by the defendant, and when the absence of the writing is not accounted for. But. the general rule seems to be that parol testimony is not competent in such circumstances. 1 Bishop on Criminal Procedure, section 1280; 1' Greenleaf on Evidence, section 227; 1 Wharton on Criminal Law, section 697. We have held that, where dying declarations are reduced to writing, and signed by the deceased, tbe writing is the best and only evidence, if in existence, and otherwise admissible. *State v. Sullivan,*51 Iowa, 142; *State v.*Fraunburg, 40 Iowa, 555; *State v.*Tweedy, 11 Iowa, 350. And we know of no sound reason why the same rule should not be applied to confessions. This question is not in the case, however, and we need not further notice it. The suggestions are given merely for the guidance of the State upon a retrial.

*323
      2. Intoxication as a defense: instructions,
      *322The witness Schneider testified that on the day of the murder, and shortly before noon, the defendant took four *323drinks of some kind of liquor; two of them from an ordinary small whisky glass, and, the other two from a, ° ' bottle about the size of a beer bottle. This, liquor was given to the defendant by a traveling liquor salesman out near the barn, and the drinks were taken not far apart, and not more than an hour and a half or two hours before Mrs. Busse was killed. There was no evidence as to the kind or amount of liquor drank further than we have stated, nor was there evidence tending to show the intoxication of the defendant. The defendant asked the following instruction, which the court refused to give, and no instruction was given on the subject of intoxication:

> You are instructed that, before the jury can find the defendant guilty of murder in the first degree, thdy must ascertain as a matter of fact that the accused was in such a state of mind as to do the act of killing willfully, 'deliberately, premeditately, and with malice aforethought; and any fact that will shed light upon the condition of his mind at the time of the killing may be looked into by them, and constitute legitimate proof for their consideration. And among other facts, any state of drunkenness being proven, it is a legitimate subject of inquiry as to what influence such intoxication might have had upon the mind of the defendant in the perpetration of the deed, and whether he was not, at the time of the killing, in such a state of mind, by reason of intoxication, as would be unfavorable to the commission of a crime requiring deliberation and premeditation.

If there had been affirmative evidence of intoxication, the instruction asked, or a similar one, should have been given. The crime charged involved the condition of the defendant’s, mind at the time of the killing, and evidence of intoxication could be considered by the jury in determining his mental condition; but we know of no authority holding that the mere fact that an offender drank liquor shortly before committing the crime will constitute such evidence of intoxication as to require the question of its effect upon his mental condition to be submitted to the jury. It is the mental confusion pro-*324dueed by liquor which is receivable on the question of intent or premeditation, and not the fact that liquor having been taken; for it is a matter of common observation that one man may drink a considerable quantity of liquor without being affected thereby mentally or physically, while another may be seriously affected by a small drink. 1 Wharton on Criminal Law, section 41.

3. Misconduct: argument. In the closing argument for the State, counsel called the jury’s attention to the facts developed upon- the trial of murder cases elsewhere. He related a case where a minister had brutally murdered his wife. This was ap- *°*parently in answer to the argument of the appellant’s counsel that because the appellant was a member of the church he could not be guilty. Again, he related the circumstance of the murder of one friend by • another for the purpose of securing a pair of shoes, and commented upon the depravity of the murderer. We see nothing in the argument relating to these two cases calling for censure even. The comments thereon were legitimate, in the first case in answer to the argument of opposing counsel, and in the second case for the purpose of illustrating the slight motives which sometimes induce murder.

The third statement complained of presents a question of a much more serious nature. Counsel told of a case in the State of Illinois where one juror of the panel which acquitted the defendant afterwards took part in lynching him. True, counsel did not say in so many words that the accused was lynched after acquittal, but the veil covering the allusion thereto was so transparent that it hid nothing. In justice to counsel, however, we should further say that his comments on the verdict related only to the failure of the jurors to do their duty, regardless of everything else. We do not think counsel intended to impress upon the jurors the possibility of a lynching in case they should acquit, but enough was said to suggest to them that an acquittal might create such a feeling of condemnation in the public mind *325as to produce a like result. What its influence upon the jury might have been we cannot say, but it needs no argument or citation of authority to show that jurors should not consider such matters, or that the prosecution should never, directly or indirectly, suggest the thought to them; and this is especially true in cases calculated to arouse public excitement and indignation. While we would not consider it necessary to reverse this case on account thereof, we see no justification or excuse for the statement, and cannot refrain from this criticism of it.

4. Murder: manslaughter; instructions. In the absence of the confession, the State must have relied upon circumstantial evidence to secure a conviction. When Schneider heard the screams, and, looking, saw'the defendant and his wife standing together in the ° ° yard, he saw no violence offered the wife by the defendant, and until the confession was made there was no direct evidence of what occurred in the house when Mrs. Busse was killed. In his confession the defendant stated that she struck or struck at him as he entered the door of the house, and that he then “ went wild,” and struck her with a chair. If the jury found this exculpatory statement true, there would have been ground for finding the defendant guilty of a lesser crime than murder in the first degree. The defendant asked the court to instruct specifically on this branch of the case, applying the law to the facts before the jury; but the instruction was not given, nor was any given specifically calling the jury’s attention to the transaction as related by the defendant. The court gave only the naked legal definitions of the two degrees of murder and of manslaughter. The instructions given announced correct rules of law without doubt, but something more than this is often necessary to insure a perfect understanding of the legal effect of proven facts. If the defendant, in the heat of passion, provoked by his wife’s act, and without deliberation or premeditation, struck her a blow which was fatal, he was wrongly convicted of murder *326in the first degree. The evidence tended very strongly to prove that death was caused by the blow or blows on the head; and, while the jury may not have found the exculpatory part of the confession true, the confession, considered as a whole, the nature of the case, and its importance as well to the State as to the defendant, demanded that the court apply the law to the exculpatory part of the confession, instead of leaving the application thereof to the jury without further light than was given in the naked legal propositions. There was evidence, it is true, tending to prove all of the elements of murder in the first degree; but it was not so overwhelming as to preclude any other finding. The facts presented to the jury were peculiarly revolting. The brutal mutilation of the body, and the other conditions present when it was found, were well calculated to arouse the passion and prejudice of any man-with human instincts; and still these conditions were not absolutely inconsistent with the theory of the defense that Mrs. Busse was killed by a blow on the head, delivered in the heat of passion, and under the circumstances stated in the defendant’s confession. It was the defendant’s right to have this defense plainly defined in the instructions to the jury, and this we are constrained to hold was not done. The court, in its charge, gave the usual definition of manslaughter, and in another instruction said:

> If you do not find the defendant guilty of murder in either the first or second degree, but do find from the evidence introduced upon the trial, under these instructions, beyond a reasonable doubt, that the defendant, in Butler county, Iowa, on or about June 18, 1901, did unlawfully kill Lena Busse, without malice either express or implied, and without deliberation, by resorting to any or all of the methods alleged in the indictment, then you ought to find the defendant guilty of manslaughter, whether such killing was voluntary or involuntary. Otherwise you should .not so find.

In Bishop’s New Criminal Procedure, section 878, the learned author says:

> *327Tbe law of tbe case wbicb tbe judge is to lay down to tbe jury is not tbe abstract law, sucb as a statute or common-law definition of a crime, but tbe law’s conclusion from tbe several, and perhaps varied facts wbicb tbe evidence tends to establish, viewed in connection with tbe pleadings. Therefore no abstract proposition, however correct, should be given in charge; not only because it would be confusing to tbe jury, who, being unused to legal disquisitions, would not know bow to apply it, but also because its combination with tbe special facts might render it erroneous.

In *State v. Glynden,*51 Iowa, 463, it was’said of the instructions:

> They are rather general and abstract propositions- of law, correct enough in tbe main, but, on account of their generality, their bearing and force may not have been fully understood and correctly applied by tbe jury. In this respect tbe instructions are capable of great improvement. These remarks are made, not because we think tbe instructions are absolutely erroneous, but because we believe justice would be more surely administered were instructions given to juries of tbe character we have indicated they should possess.

If tbe jury did not fully understand, from tbe instructions given, tbe relations wbicb tbe exculpatory facts contained in tbe confession bore to the degree of the crime charged in tbe indictment', tbe defendant’s legal rights were not properly guarded, and tbe verdict should not stand. *State v.*Helvin, 65 Iowa, 289; *State v. Hathaway,*100 Iowa, 225. And sucb is tbe conclusion of some members of tbe court. It is said that tbe instruc-. tion asked on this branch of tbe case was not in all particulars correct, and this may be conceded. It was a request, however, for tbe court to instruct specifically on that subject, and this, we think, be should have done when bis attention was called to tbe matter, whether tbe instruction presenting tbe request was in all respects right or otherwise.

Tbe court is not bound to instruct in tbe language of counsel, and in fact we have held that it is tbe better prac*328tice for the Judge to embody tbe request in its own charge. *State v. Collins,*20 Iowa, 90. But, although united on all other questions discussed herein, the court is equally divided on the last proposition, the views of the other members thereof being expressed by Mr. Justice Ladd, and the case will therefore be affirmed by virtue of the statute.— — *Affirmed.*

Ladd, J.

(concurring). It may be conceded that, as 'a rule, instructions should apply the law to the facts, but in no case to be found in the books has failure to do so, where the facts are so simple that the applicability of the law as stated is manifest, or so apparent that misapprehension or mistake is altogether unlikely, been regarded as reversible error. This is for the very good reason that some things are so plain that any elaboration or -explanation is not only unnecessary, but often tends to confusion. Of this the case at bar is an illustration. The most serious error complained of is the court’s omission to instruct more specifically on the crime of manslaughter. An accurate instruction on the subject was not requested, and therefore the fault, if any, must be found in the charge of the court as given. The accused, if guilty at all, was guilty of murder in the first or second degree or of manslarighter, and, in my opinion, these were so clearly differentiated in the charge of the court, the one from the other, the duty of deciding of which he was guilty so strongly emphasized, and the definition of manslaughter, as given, so pertinent to the only state of facts indicating in any way guilt of that offense, that the jury could not have failed to fully comprehend the bearing of the law on the facts of the case.

I. In the fourth paragraph of the charge the court instructed that, “ whosoever kills a human being with malice aforethought, either express or implied, is guilty of murder,” and in-the seventh that manslaughter is “the unlawful killing of a human being without malice, either express *329or implied, and without deliberation or excuse.” In tbe intervening instructions tbe distinction between murder in tbe first and second degree was stated, and accurate definitions of “ malice,” “ malice aforethought,” “ deliberate,” *“*premeditate,” and “ willful ” were given. Tbe jury then, at tbe outset, was made to understand that, in order to convict of murder, an affirmative finding of malice was essential, and, if of murder in tbe first degree, to malice aforethought must be added tbe premeditated and deliberate purpose to kill, and that, with all tbe above elements eliminated, tbe crime would be manslaughter only.

II. Tbe necessity of discriminating between offenses, and deciding of which be should be convicted, was definitely stated. In tbe second instruction it was said be could be found guilty of any one of them, while in tbe fourth tbe jury was told that, if be *“*should be found-guilty of one of ■them, and a reasonable doubt was entertained as to whether be was guilty of a greater or less offense,” be should be given tbe benefit of tbe doubt, and be convicted of the lesser one only; and tbe twenty-sixth instruction cautioned against a conviction of more than one of tbe crimes enumerated. Precisely what was essential to a verdict of guilty of each was concisely stated in three successive instructions: In tbe twenty-tbird, what was essential in order to convict of murder in the first degree; in tbe twenty-fourth, what should be found to convict of murder in tbe second degree; and in the twenty-fifth instruction that, if the killing was unlawful, and without malice, either express or implied, and without deliberation, he should be convicted of manslaughter.

III. With full knowledge of the distinction between murder and manslaughter, and conscious of their duty, as they must have been, to determine of which the defendant was guilty, the- jurors began their inquiry.. The evidence was without serious conflict. None was introduced in behalf of the defendant save as to his previous character, his offer to loan some money belonging to his wife, and a contradic*330tory statement of a witness outside of court. Aside from bis admissions, it was purely circumstantial. But for these, the manner of bis wife’s death could only be inferred from the bruises and wounds on her dead body, furnishing no indication of the mode and intention of the perpetrator of the crime. The weapon was unknown. Even in his alleged confession the accused was not sure that the fatal blow was given with a chair. Aside from some admissions warranting the bare inference that he may have caused her death, the only particulars tb be found in the record are those in the sheriff’s testimony of the statement made by' the defendant when in"jail:

> While I was choring around out at the barn, my wife came out, and she went talking about her folks — finding fault. That there was Harm Cassman. She wasn’t going over there any more. He charged her five dollars for riding with him over to Ackley to Kruse’s — Siko Kruses — because he had some of her furniture he would not. let her have. Then I said to her, “ What is the matter with you anyway ? ” There was a pail of feed sitting on the ground. I reached down and took it, as though I was going to throw" it at her. She screamed, and ran to the house. I followed her up to the house, to see what she was going to do, and as I opened the door she struck me over the head with something. I went crazy wild at that time, and struck her with something, I don’t know what. I done all the rest.

He Was pretty sure it was a chair with which she hit him, and that he seized the same from her, or another one, and struck her. The consequence of an act, naturally resulting therefrom, in the absence of any circumstances indicating the contrary, are presumed to have been intended, as the jury was informed; and but for the confession, a verdict for murder in either the first or second degree must have been returned. This is conceded, but it is said that the attention of the jury was not directed to the bearing of the confession on the crime of manslaughter. Let me repeat that the only information as to the manner *331of killing was that contained in the confession, and it was the only evidence even tending to reduce the crime to that of manslaughter. Was it possible for the jurors to forget it ? Other incidents of the trial may have been overlooked, but the account said to have been given by the accused himself could not have been ignored. Even were this possible, it may safely be assumed, that the able counsel for the defense, whose efforts throughout the trial were directed more to reducing the degree of the offense than in procuring an acquittal, did not permit the significance of this evidence to escape attention. But the jury was not left in the dark. The necessity of deciding whether defendant was guilty of manslaughter had been strongly impressed upon their minds by the charge of the court, and they were told in the twelfth instruction that, “ to constitute voluntary manslaughter, the killing must be done when the reason is disturbed or obscured by passion to an extent which causes a person to act rashly,. without reflection, and from passion, rather than judgment. There must be an adequate provocation for the passion, and the killing must be done without previous malice.” The only evidence to which, by any possibility, this instruction could have been construed to refer, or, on the other hand, which could have been connected with this instruction, was that of the confession. The accused had said he went “ crazy wild ” when his wife hit him as the door vías opened, and as a result he struck her, presumably, the fatal blow. The only inference to be drawn from this language was that he lost his temper, and killed her in the heat of passion, and we submit that this was the only inference the jurors could have drawn. With this instruction before them, saying that, “ to constitute voluntary manslaughter, the killing must be done when the reason is disturbed or obscured by passion to any extent which causes a person to act rashly without reflection and from passion rather than judgment,” is it possible that they were unable or failed to make the application? Could a direct instruction includ*332ing the language of the confession have made it plainer? Certainly not, and a ruling to the contrary belittles the intelligence of the jury.

It must not be forgotten that the courts, in delivering instructions in this State, are speaking to men of larger capacity and more liberal education than was possessed by those who sat in the jury box when many of the rules relating to the charging of juries were developed and announced. By this I do not mean to say that inaccuracy in the statement of the law of a case should be tolerated, but that in determining whether the jury must have comprehended and correctly applied the law to the facts the high degree of intelligence and advanced education of the modern juror should be recognized, and taken into consideration. This was not necessary, however, in the instant case, for anything above ordinary mental acumen need not be presumed in order to conclude that the applicability of the law to the statement contained in the confession was fully appreciated by the jury; for (1) the account contained in such confession was the only evidence to which the instruction on manslaughter could have been applied; (2) the instruction was pertinent to the language of the confession, and directly applicable thereto, and to no other evidence in the case; and (3) the necessity of a finding as to whether defendant was guilty of this particular offense was especially enjoined upon the jury. In convicting him of murder in the first degree, the contention that he acted without malice was rejected. The finding of deliberation, premeditation, and a willful purpose to kill necessarily excluded the notion that the crime was the result of 'passion. His own story stamped him as the aggressor. If he is to be believed, he committed the first assault by reaching for the pail of feed in such a threatening manner that his wife rushed screaming to the house, and closed the door behind her, the defendant pursuing, and upon opening the door was met by force in apparent self-defense, when he beat her down to the earth. It *333may be that his wife acted with provocation, but certainly this ought not to be said of him. He was following up a fierce and unprovoked assault, and a finding by a jury that his passion, if any he had, when he struck her down while repelling his pursuit, should be> attributed to any “ adequate provocation ” on her part would be entitled to little respect, indeed. His previous ill feeling toward deceased was shown, and the verdict, in fixing the death penalty, was warranted by the record, if in any case life ought to be forfeited as a penalty for crime. These matters are mentioned because they obviate any inference which might possibly be drawn from the verdict that the jury, because of its character, may have failed to appreciate the bearing of the law and the evidence on the issue as to whether defendant was guilty of manslaughter.

In my opinion, the accused was accorded a fair and impartial trial, and the judgment ought to be *affirmed.*