The Leon reporter. (Leon, Iowa) 1887-1930, 1913-07-17

| house. The evidence does not at all
warrant this contention. His conduct
and conversation in the house were
kindly and good natured and abso-
lutely free from controversy. 1t is
further urged by the state that this
defendant and his cO-defendants
went to the Zornes home for the
purpose of making trouble. There is
no evidence in the record that has
any tendency in that direction. The
defendant offered much testimony on
the trial to the effect that liquors
were sold at this house and that they
were there by invitation express ard
implied and that the place was
much frequented. All of this evil
dence was ruled out upon objection
of the state as immaterial. On the
: theory on which the case was tried,
the ruling was proper. There was
no claim by the state of conspiracy
or of previous plan to provoke
fight. If such had been the claim Of
the state, then clearly the evidence
offered by the defendant would have
been proper. In this state OF the
record it is not available to the state
now to advance a theory that the in
jury was inflicted upon Mrs. Zornes
t in pursuance of previous plan. In
deed the district court instructed the
jury that the defendant could be
held liable only for his own acts.
Considerable evidence was introduce
ed on behalf of the defendant to the
effect that the deceased was COM
bative and dangerous person who
had engaged in many personal en-
counters. This testimony was in no
wise disputed by the state. Testi-
mony was also introduced that at the
time of her injury she was assaulting
Tom Young with poker and that
the injury inflicted upon her was
done in resistance to such assault.
The dispute in the testimony at this
point rested solely with the jury and
for the purpose of this appeal she
should be deemed blameless.
But the guilt Of the defendant
should not be assumed as a mere
matter of inference simply because
the fatal blow was inflicted by his
brother 1t was undisputed that the
defendant had always born good
reputation.
Assuming the Zornes family to be
blameless as we do for the purpose
of this appeal, it seems very clear
that the responsibility for the trouble
rested upon Tom Young and Clarence
Teale. Both had imbibed intoxicat-
ing liquors before they came and
this accounts for much that would
otherwise seem incredible. Both
have been convicted and have been
sentenced to long terms Of imprison-
ment The fact that they were thus
guilty should not be allowed to have
too great effect in fixing guilt upon
others who were present but were
helpless to prevent the alteration.
The fight lasted but few mo-
ments. Every one present was in
momentary bodily peril because
thereof. They were necessarily pres
ent. If direct evidence were lacking
as to the infiction of the blow which
caused the death of Mrs. Zornes,
doubtless a larger latitude, of infer
ence duplicating the personR present
would be permissible to the jGxN. But
in view of the direct testimony tntro-
duced by the state fixing the direct
responsibility upon Clarence Teale,
the latitude OF mere inference as
against others was necessarily reduc-
ed accordingly; there being no claim
or evidence of a previous conspiracy.
1t is not conclusion that the evidence
is not sufficient to support the verdict
of guilty and that new trial should
be awarded. If additional evidence
can not be procured tending to show
participation in the crime by the de-
PENDANT, the prosecution ought to be
dismissed.
9. In view of a possible new trial
we should perhaps note certain COM
plants with reference to the lnstruc-
tons. Instruction No. 2 was as
fellows:
Il you find from the evidence be-
yond reasonable doubt that at and
within the county of Decatur. and
state of Iowa, the defendant Hugh
Teale, and his co-defendants. Ilar-
ence Teale and Tom Young, or either
of them the said Hugh Teale being
present, aiding and abetting, and con-
senting thereto, did on or about the
18th day of December, 1910, unlaW-
fully and without legal excuse, kill
Bertha ZorneS, without malice, eth
err express or implied, defendant
Hugh Teale would be guilty of man
slaughter, unless you find that Bertha
Zornes was killed by Tom Young in
self defense as hereinafter set forth
in these instructions on that subject.
Particular complaint is directed
against the portion of such instruc-
ton which we have italicized above.
1t is urged that this instruction was
misleading in that it seemed to at
firm or assume that the defendant
was by his presence "aiding and
abetting." The real meaning intend
ed by the trial judge is quite mani
fest to us. Giving to the instruction
the intended meaning there could be
no objection to it. We are quite con-
WINGED however that the intended
meaning does not stand out clearly
to one unacquainted with technical
forms of legal expression. The said
Hugh Teale being present, aiding,
abetting and consenting thereto" is
an expression which is assertive and
affirmative in form rather than hypo-
thetical of subjunctive. This form Of
expression is suitable to the charge
of indictment. 1t is accusative. 1t is
not happy or suitable form in which
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