Boulton & Co. v. Hahn.

SEEVERS, CH, J.-It is conceded this cause is triable anew in this court. The evidence is brief and disputed questions Mrs. Kones the mother of the defendant Helena

are few.

1. CONVEY

ANCE: voluntary: void: husband and wife.

held the title to certain real estate in Missouri.

This property with other real estate, the title to which was in defendant Nicholas, was traded by the latter for a team, wagon, harness and note for $40. The team, wagon and harness, was traded by said Nicholas for the property in controversy, and the deed therefor made to Mrs. Hahn. One question is to whom did the real estate in Missouri belong. The appellee insists to said Nicholas in fact. As against him there is evidence so tending but as the evidence consists of his declarations made when his wife was not present, we do not think she is bound thereby. But it is in evidence that Mrs. Hahn said her husband took to Missouri $4,000, and that the house in controversy was all they had left. This tends strongly to show the house was not obtained with means given her by her mother. Besides this the title to a part of the property traded for the team, was in said Nicholas. It is not claimed this property did not belong to him. He then at least had an interest in the team. The defendants testsfy Mrs. Kones gave the team to her daughter. The trading was all done by said Nicholas and he had the team in his possession about six weeks, using and controling it as his own. During such time he executed a mortgage on it for money borrowed by him. His wife knew of this fact and there is no evidence tending to show she asserted the team belonged to her, or done anything which could be construed as so tending, until after the commencement of this action. We think the facts aforesaid create a preponderance of the evidence in favor of the proposition that the team did not belong to Mrs. Kones, but to said Nicholas. It is true the latter might have done all he did as the agent of his wife but this cannot be presumed. There is no pretence Mrs. Hahn paid anything for the team or lot, and she testifies she knew her husband was indebted to plaintiff's at the time the conveyance was made to her. It

58 520 107 605

The State v. Hartzell.

was therefore without consideration and voluntary and must be held void as to existing creditors. Moore v. Orman et al., 56 Iowa, 39. A new trial was asked because of suspense. It is suggested but not pressed, in argument the court erred in overruling the motion.

It is sufficient to say we do not concur in this view.

AFFIRMED.

THE STATE v. HARTZELL.

1. Criminal Law: INSTRUCTIONS: CONTRADICTORY. Where the instructions are voluminous and confused, and lay down two contradictory rules for the guidance of the jury, and it appears that the jury may have adopted the erroneous instead of the correct rule, the judgment will be reversed.

2.

: ACCIDENTAL HOMICIDE: INSTRUCTION. As there was evidence in the case tending to sustain the claim that the blow which caused the death was accidental, the jury should have been instructed as to the law in relation to accidental killing.

Appeal from Taylor District Court.

THURSDAY, JUNE 8.

THE appellant and his brother George Hartzell were jointly indicted and charged with the crime of manslaughter. There was a separate trial and the defendant was found guilty and judgment thereon having been rendered he appeals.

L. T. McConn, G. W. Howe and Mark Atkinson, for appellant.

Smith McPherson, Attorney-general, for the State.

SEEVERS, CH. J.-As claimed by the defendant the evidence tended to show he was a night watchman or police officer of the town of Lennox and that the deceased and law instruc- others, about nine o'clock on Sunday night were

1. CRIMINAL

tions: contra

dictory. creating a disturbance in the streets of said town

The State v. Hartzell.

and after vain efforts on the part of the defendant to get the parties to go home the defendant arrested the deceased with the aid of the said George Hartzell whom he had called to assist him and they were taking the deceased to the jail when the latter struck the said George knocked him down and jumped on him with one or both feet, whereupon the defendant for the purpose of protecting his brother and in self-defense, accidentally struck the deceased on the head with a "billy." The evidence tended to show the blow caused the death of the deceased. The theory of the State is materially different. It being claimed by the prosecution the defendant was not a peace officer authorized to make arrests and that the deceased did not strike George Hartzell immediately before the fatal blow was struck. The court instructed the jury as follows: "If you find that the defendant and one George Hartzell had in their custody and under arrest one Andrew Kennedy, charged with having committed a misdemeanor, and that they were conducting said Kennedy to jail, and that while so doing Kennedy made an assault upon them with his hands only; if you find that the defendant and George Hartzell were men of equal strength with said Kennedy, and that defendant and George Hartzell had no reasonable grounds for fear of receiving great bodily harm or loss of life, and that they could have restrained and prevented the escape of said Kennedy without the use of a deadly weapon, then defendant had no right to make use of, or assault said Kennedy with, a deadly weapon, and if you find he did so and thereby caused the death of said Kennedy, then you will find the defendant guilty as charged."

The objection made to this instruction is, that both the defendant and George Hartzell must have had reasonable ground to believe they would both receive bodily harm before the defendant would be justified in using a deadly weapon. That the instruction must be so construed there is no doubt. is practically conceded by the Attorney-general. The instruction is clearly erroneous because the defendant would have been justified in using a deadly weapon, if he had reasonable

This

The State v. Hartzell.

grounds to believe that he alone would receive great bodily harm if he did not do so. The Attorney-general does not claim otherwise, but he insists that there are other instructions in which the rule is stated differently. It is true that in the thirty-first, and perhaps other instructions, it is said if either the defendant or his brother were in danger of receiving great bodily harm then the defendant was justified in using a deadly weapon. One great difficulty in the case is the instructions. are too voluminous and therefore tend to confuse. But the best that can be said is two rules have been laid down for the guidance of the jury and they may have adopted the erroneous instead of the correct rule. The instructions are contradictory and therefore liable to confuse. As there must be another trial we deem it proper to say it will conduce to a fair trial if the court will omit defining the crime of murder, and also any lesser crime than manslaughter, if upon such trial the evidence is the same as that contained in the present record because the defendant is guilty of man slaughter or he is not guilty. The defendant admits that he struck the fatal blow. Unless he was justified in so doing, as death ensued, he is guilty of manslaughter.

2.

: ac

icide instruc

tion.

Complaint is made that the court failed to direct the attention of the jury to the claim made by the defendant that the blow which caused the death was accidental. As cidental hom- there was evidence tending to sustain the claim the law in relation to an accidental killing should have been given the jury. The court instructed the jury as to when a person other than an officer may justify the use of a deadly weapon. The rule of the instruction is not objected to, but it is said there was no evidence upon which it could be based. But we think there was at least some evidence so tending, and it was for the jury to say whether it was sufficient or not.

REVERSED.

In re Estate of Seaton.

IN RE ESTATE OF JAMES SEATON.

1. Estates: LANDS: ACTION BY HEIR: JURISDICTION: PRACTICE. Where the estate has been settled by proceedings in one county, and the lands belonging thereto is situated partly in that county and partly in another, the Circuit or District Court of either county has full jurisdiction to entertain an action brought by an heir for the recovery thereof, or any estate therein; and where no objection is interposed, the courts will disregard the form of the proceedings and administer whatever relief the parties may show themselves entitled to.

Appeal from Harrison Circuit Court.

FRIDAY, JUNE 9.

Ir appears from the abstract in this case that James Seaton died intestate, and that one McGavern was appointed administrator of his estate by the Circuit Court of Harrison county. After what was supposed to be full administration of the estate, the administrator was discharged in March, 1879.

In December, 1879, J. C. M. Seaton, a resident of Pottawattamie county, commenced an action in the Circuit Court of that county against W. W. Seaton, and others, who claimed to be the heirs of James Seaton, deceased, claiming that he was the only heir of James Seaton, and that he was seized in fee of all the lands of said James Seaton which had not been disposed of, consisting of some 1,800 acres, partly situated in Pottawattamie county and partly in Harrison county. On the second day of February, 1881, it was decreed that said James C. M. Seaton was an illegitimate son and heir of James Seaton, deceased, and entitled to inherit his estate. Pending this action W. W. Seaton petitioned the Circuit Court of Harrison county to be appointed administrator de bonis non of the estate of James Seaton. The appointment was made, and it is claimed he proceeded thereunder to sell land and pay certain alleged debts. This proceeding was commenced in the name of said J. C. M. Seaton, by guardian, in March, 1881. The proceeding is called a motion, and it is sought