State v. Kneedy , 232 Iowa 21 ( 1942 )

I find myself unable to agree with the majority and respectfully dissent.

In an opinion handed down May 5, 1942, State v. Whisler,231 Iowa 1216, 1219, 3 N.W.2d 525, 527, this court said:

"We have frequently held that this court may reverse a criminal case, even though having some support in the evidence, if the verdict is clearly against the weight of the evidence. State v. Carson, 185 Iowa 568, 170 N.W. 781, and cases cited."

Although this is a criminal case, it is a very peculiar record, for there is little, if any, dispute in the facts. Kneedy himself volunteered, and was permitted, to tell the story to the grand jury.

Kneedy and Van had known each other for approximately a year and a half. While they were friends, they never had been engaged in any joint ventures. There is some evidence that Kneedy was at the pool hall that afternoon and evening. This is the evidence of Fitzgerald, the owner, but on cross-examination he admitted that Kneedy was there when he came back from his evening meal and he did not know what time that was. Kneedy says he went into the pool hall about 10 o'clock that evening. As far as I can see, it is not important just exactly what time he went there. Van was playing pool with a man named Johnson. There was an argument between Van, Johnson, and Kneedy. There was some profanity used, but the argument ended when Van admitted he was to blame and not Kneedy. This apparently was not the reason for their being asked to leave the pool hall. The reason was that the hour of midnight had arrived, when the pool hall was required to be closed.

It is true Van and Kneedy did not want to leave, but Fitzgerald, the owner, whose testimony is greatly relied upon by the majority, testified, I quote:

"I put Kneedy out alone taking hold of him by the back of his neck and on his arm. He offered no resistance. He didn't swingand didn't hit a blow while I was putting him out, and I had notrouble with him then. I don't know what the argument was about when I ordered them out. I had told them they would have to quit arguing or out they would go. I told them it was twelve o'clock and they were still arguing and they would have to get out." (Italics supplied.)

After Van and Kneedy were put out, they started back into the pool hall. There is not one word of evidence, not even a claim on the part of the prosecution, that there was any talk between Van and Kneedy after they were put out of the pool hall. They started back in immediately. Kneedy was pushing against the door, and, as the majority say, the blow was struck instantly as the door was opened. The sole and only thing that Kneedy is guilty of, as I read this record, is pushing against the door.

It is not claimed that Kneedy hit Cook nor is there any claim made that Kneedy hit or attempted to hit any person inside the pool hall.

Great reliance is placed in the majority opinion on the attitude of Kneedy immediately after the blow was struck and later in the evening. Part of the evidence of the witness Fitzgerald is quoted. I would like to insert a part of that evidence that follows the majority quotation. The majority quote:

"`I then stepped outside and both Van and Kneedy came at me with their fists doubled up swinging at me.'"

Then Fitzgerald testified, I quote:

"Powell then came through the door and hit Van. Kneedy seemed ready to hit Powell and I hit him. I then went back inside because there was nobody to take care of my business."

No other witness testified that Kneedy even attempted to hit any other person, inside the pool hall or outside, and it will be noted that Fitzgerald does not say Kneedy hit him. In fact, Fitzgerald hit Kneedy.

The only charge made against Kneedy is that he aided and abetted Van, who was the man that hit Cook. The distinguished trial court in submitting the case to the jury, said:

"* * * if you find beyond a reasonable doubt that the defendant was knowingly concerned in the commission of the alleged offense, and knowingly aided and abetted the same, you can still convict him of assault with intent to inflict great bodily injury only upon a finding beyond a reasonable doubt that he aided and abetted the assault with the intent on his own part to inflict a great bodily injury upon the said Cook."

I have no fault to find with this instruction. My objection is that there is no evidence in the record that Kneedy knowingly aided and abetted Van, and as I understand the law, knowledge is one of the necessary elements of the crime charged. In the case of State v. McCarty, 210 Iowa 173, 177, 230 N.W. 379, 381, this court said:

"* * * knowledge is a necessary element to constitute an accessory."

The majority recognize this. I quote:

"It is reasonable to infer that the door was opened to permit Van to strike the blow."

They do not say what it is that in their judgment justifies such an inference, but I can readily see why the majority state this, because the opening of the door was the only part that Kneedy played in this unfortunate affair. Then the majority say:

"`The common purpose of Kneedy and Van to assault Cook is shown by their joint attempt within a few moments to strike both Fitzgerald and Powell.'"

The majority, confronted with the necessity of showing some common purpose between Kneedy and Van to assault Cook, base it upon the claim that there was a joint attempt within a few moments to strike both Fitzgerald and Powell. Not a witness testifies, as I read the record, that Kneedy ever attempted to hit Powell or any other person. The majority base their statement upon the testimony of Fitzgerald and all that Fitzgerald testified to was:

"Kneedy seemed ready to hit Powell and I hit him."

Not a single witness testified that Kneedy ever attempted to hit Cook or that he had any purpose or idea of assaulting Cook. In fact, the uncontradicted record shows that Cook was a friend of Kneedy's.

Great reliance is placed upon the testimony of the witness Groves in regard to a conversation he had with Kneedy some hours after the affair happened, but the thing that seems to me to answer all of these charges made in the majority opinion is the fact that on the night this occurred, no one at that time, not a single one of the witnesses nor the law-enforcing officers of Hamilton county, made any charge against Kneedy. He was not even asked to go to the police station. No charge of any kind was made against Kneedy until 22 days later, when Cook unfortunately died from a streptococcic infection of the throat, which, in the judgment of the distinguished trial court, was in no way connected with the striking of Cook by Van.

As I read this record, there is no evidence of any knowledge upon the part of Kneedy as to what Van was going to do on that evening when they started back into the pool hall; no evidence to show that this appellant either aided or abetted Van or was Van's accomplice in connection with the blow which Cook received from Van. In fact, there was no way in which Kneedy might have known that Van intended to strike Cook. Men should not be convicted of offenses on mere inferences. There should be substantial evidence. The verdict is clearly against the weight of the evidence, and this court, in my judgment, should reverse the case.

I am authorized to state that JUSTICES OLIVER, MILLER, and WENNERSTRUM join in this dissent.