State v. Olander

Preston, J.

— All the evidence, and everything that was said-and done in this matter in the district court, was taken' down by the reporter. The court carefully guarded every right of the defendant. This is conceded. There is no error in the record, unless it be that the penalty of death is excessive.

The deceased, Halfpap, an honorable citizen, while engaged with his duties as a merchant, was killed by a shot from a revolver, held in the hands of this defendant, while he and two confederates, Otis Goble and Elmer Sweeny, were perpetrating a robbery. At the time of the hearing herein, Goble and Sweeny had not been tried. There is no doubt whatever of defendant’s guilt. This is conceded. His counsel state that for defendant’s crimes of robbery arid murder they offer no excuse, tender no apology, and proffer no extenuation. It is shown by the evidence, and conceded by the defendant, that he had been engaged in similar enterprises of robbery with the other two, sometimes one and sometimes another holding the revolver. His counsel concede that he is a highwayman and a bandit. He deserves severe punishment. The defendant is 28 years of age. When ■he was quite young, his father deserted his mother and the *1381 family. When defendant was about 15 years of age, he stole some property of small value, and was sent to the Industrial School at Bldora, where he remained for two or three years. When paroled from that institution, he went to work in light and power plants at different places. He married, and has three young children. He went to work in the gypsum mills at Fort Dodge. When the mills closed down, he was out of employment. He claims to be now penitent, and while confined in jail, wrote a letter to the widow of his victim, with the hope, perhaps, that this and his plea of guilty would operate to his advantage. The deceased had a wife and four children. While deceased ■was being robbed, he resisted. It is claimed by appellant’s counsel .that the killing was not premeditated or planned. It appears, however, that the robbery was planned in advance. The defendant himself so states. He was armed, and was prepared and willing to kill, if it became necessary. The statute makes a killing under such circumstances murder in the first degree.

In an earnest, touching appeal by his counsel, we are asked to be merciful — to save the life of the defendant. For myself, and I am sure I express the sentiments of my associates, I feel the great responsibility. The State asks that the extreme penalty inflicted be sustained, for- its deterring effect upon others similarly inclined, and for the protection of society. We are asked by appellant to be merciful, where he showed no mercy to his victim and his victim’s family. We are asked to give greater consideration to the defendant’s family than he himself gave them. It is urged by counsel for appellant that the law providing for or permitting capital punishment does not have the deterring effect intended and expected by its passage. With the question whether the law is wise or'not, we have nothing to do. •

Counsel for appellant state that they “believe the sentence of death should be commuted to life imprisonment. That is all there is to this appeal.” They contend that the judgment is excessive, not alone because of the matters before referred to, but because of defendant’s conduct since his arrest, in pleading guilty, and saving the State the expense of a trial, and because *1382 of the result of jury trials in which defendant’s accessories, Goble and Sweeny, were given life sentences. We shall refer to the matters just mentioned, later in the opinion.

Appellant cites' no cases; and the State cites but one, State v. Smith, 127 Iowa 528, and the statute making’ it murder in the first degree, when there is a killing under the circumstances here shown. As said, counsel for appellant state that the only question in the case is whether the sentence should be commuted to life imprisonment. The governor has power to do this. Constitution of Iowa, Article 4, Section 16; Chapter 73, Acts of the Thirty-ninth General Assembly. Code Section 5462 authorizes the Supreme Court to render such judgment on the record as the law demands, or render such judgment as the district court should have done, or reduce the punishment, etc. Under Section 5462, we have held that, in a proper case, we will reduce the punishment, if it is too severe. State v. Madden, 35 Iowa 511; State v. Little, 42 Iowa 51. This power will be exercised only when the court below has manifestly visited too severe a penalty, one disproportionate to the degree of guilt, as shown by the proof. State v. Freeman, 27 Iowa 333. To justify the exercise of such power, it must be made to appear that the punishment is excessive. State v. Allen, 32 Iowa 248; State v. Wilmoth, 63 Iowa 380. There must-be some legal data upon which to base its action in reducing the sentence. State v. Baughman, 20 Iowa 497. In State v. Houston, 50 Iowa 512, it was held that the facts in a prosecution for murder were not such as to require a reduction of the sentence. So held, also, in other cases, as burglary, larceny, and so on. State v. Franks, 64 Iowa 39; State v. Ritchie, 69 Iowa 123; State v. Heatherton, 60 Iowa 175; State v. Mower, 68 Iowa 61. On the other hand, in a particular case, where the highest punishment was imposed for an act which was not the most aggravated form of the crime', it was held that the sentence was excessive, and it was reduced. State v. Thompson, 46 Iowa 699. That was an incest case, where a sentence of ten years was imposed. The court said that, while such a crime was revolting, and should be severely punished, still it, like every other crime, has its grades of aggravation and enormity, and, after stating some of the circumstances, held that *1383 more aggravated cases of such crime frequently occurred. The sentence was reduced to five years. Other cases where the sentence was held excessive are State v. Madden, supra; State v. Hayden, 45 Iowa 11; State v. Doering, 48 Iowa 650; State v. Moody, 50 Iowa 443; and State v. Sullivan, 51 Iowa 142. In State v. Fields, 70 Iowa 196, it was held that the evidence was insufficient to support a verdict of murder in the first degree; but since defendant did not claim that he was not guilty of manslaughter, the court reduced the sentence to the proper one for the latter crime. However, in State v. O’Donnell, 176 Iowa 337, the death penalty was imposed by.the jury in a conviction for first-degree murder. We held that the evidence was not sufficient to sustain a verdict of murder in that degree. In such a case, we held that we had no power to commute the sentence, because the statute gives the jury the exclusive power to determine the degree of the offense and to direct which of the two punishments fixed by statute shall be inflicted. At least, that was one of the grounds for so holding in that case. In' that respect, the O’Donnell case differs from the instant case. In State v. Upson, 64 Iowa 248, a sentence of three years was imposed for grand larceny. The extenuating circumstances claimed were that defendant was young, and at the time of the larceny, was out of money, and intoxicated, and that it was his first offense. The punishment inflicted could have been ten years. The court said that the punishment was not unreasonably severe. Counsel for defendant sought to compare the facts in that case, and the length of imprisonment, with the situation in State v. Moody, supra. In the Upson case, the court said that there is no rule by which the punishment of criminals may or ought to be equalized in that way; that each case must be decided upon its peculiar facts, and each offender must receive the punishment he merits, without regard to the punishment inflicted upon others. We have not attempted to review all the cases above cited. Enough has been said to show that, in the ordinary case, the court has power, if it is proper to do so, to reduce a sentence, but that we should not do so unless there is some legal reason therefor. The State calls attention to State v. Smith, 127 Iowa 528, where the trial court imposed a sentence of death, *1384 upon a plea of guilty to an indictment for murder. We held that there was a discretion vested in the trial court in such cases, and that this court “should not interfere, in the absence •of a showing of abuse of that discretion. The ease combs to us for correction of errors, and not that we may exercise the pardoning power. Commutation of sentence does not belong to this department of government.” The judgment was affirmed.

Up to this point, we see no sufficient reason for interfering. There is no reason for interfering, unless it be the fact that defendant pleaded guilty. This does not in any manner lessen the degree of the defendant’s guilt. Had the defendant demanded a jury trial, as he had a right to do, there would have been the possibility of a miscarriage of justice, and there would have been the temptation for defendant to tak.e the stand and commit the added crime of perjury, in an attempt to escape punishment or to reduce the degree. There would have been, too, the added expense of the trial. This is a matter in which the public is interested. There are, no dorxbt, many cases where pleas of guilty should be entered. There would be no inducement to plead guilty if it was understood that the highest punishment would be inflicted. This would tend to discourage pleas of guilty where, in some cases at least, such pleas ought to be, and no doubt would be, entered. It is stated in oral argument that the other two persons concerned with this defendant in the robbery and killing have recently been tried, and the jury recommended life sentences. Possibly, had that situation existed at the time the trial court imposed the sentence herein, the death penalty would not have been inflicted. But that matter is not properly before us.

It is suggested by the attorney general that this defendant is the more guilty, because he held the revolver. In a sense, this may be true. In another sense, they were all three engaged in the robbery, and in that, all were equally guilty. The fact that they were engaged in a robbery is the thing, under the statute, which makes a killing murder in the first degree. In that sense, then, they were all equally guilty. If it shall be made to appear, in an application to the governor for commutation, that the two confederates of this defendant were by a *1385 jury given life sentences, that fact, together with the fact that defendant has entered a plea of guilty will, no doubt, be given due consideration by the governor, who will determine whether, under all the circumstances, the defendant shall be given the more severe punishment. No legal reason appears in the record which would justify the court in interfering. It would be improper for the court to interfere, or seem to interfere, with the executive branch of the government and the 'prerogative of the governor, or suggest what his action should be. The governor would not assume to suggest to the court what its decision should be.

The judgment is — Affirmed.

Stevens, C. J., Evans, Arthur, and De Graee, JJ., concur specially. Weaver, J., dissents. F avíele, J., takes no part.