"We went to Brooks' house, but did not get to see him that night, and went to see him the next morning. "The evening of the 9th, when we went to his house, my wife had my revolver. I told her I didn't need it, and told her she should have left it home. When we got home I told her to put it away, because I didn't want to get into any trouble with him. "Then the next morning we all met at Ninth avenue and H street to see Brooks and have a talk with him. I or no one else in the party had a gun. | 876, with cases cited. The failure of the "When I saw Brooks coming I had taken "He seemed to wait a second or two, and fired again. I rolled over on my side, and saw him standing over me. I then tried to crawl away, and then he ran. "[Signed] H. A. Flippings." [9] Even though further evidence should be introduced upon a retrial to render competent the statement of declarant, many of the declarations therein are incompetent, and should not be permitted to go to the jury. A dying declaration must relate to such facts only as declarant would have been compe. tent, if living, to testify to if sworn as a witness in the case. State v. Wright, 112 Iowa, 436, 84 N. W. 541; State v. Perigo, 80 Iowa, 37, 45 N. W. 399. [4, 5] It is for the court to determine the competency of statements claimed to be a dying declaration, and its credibility upon admission is for the jury. The only statement made by the deceased prior to the execution of the writing indicating that he was in fear of approaching and impending dissolution is found in these words: "If I am going to die, I want to see my minister." The record does not disclose that the minister was ever sent for, and the statement itself is but an equivocal expression. Nothing was said by the deceased to the doctor who performed the operation relative to his dying, or that he thought himself in fear of impending death. True, the doctor advised him that his wound was fatal, and he would not get well, and it was at this time that he made the expression quoted above. Subsequently to this statement, and within an hour or two, the decedent's barber visited him, and at that time deceased wrote a note to the boys at the barber shop, which read: "Hello boys; feeling fine. Hope to be with gory. His conversations with his wife about you soon. Harry Flippings." Police Officer McGuire was with Flippings at the time that he wrote the declaration, but nothing was said to McGuire by Flippings about dying, and the declaration itself contains no statement indicating a sense of impending dissolution on the part of the deceased. [10, 11] A dying declaration does not take to the jury irrelevant, immaterial, and incompetent statements of the declarant. Statements by declarant relating to distinct transactions, and embracing circumstances not immediately connected with the homicide, cannot be received in evidence. The only matters which are receivable are facts which refer to the identity of the person, and establish the circumstances of the res gestæ, and the direct transactions from Antecedent circumwhich death results. stances disconnected with the res gestæ of the homicide are inadmissible. An examination of declarant's statement discloses the incompetency of many of the matters conWhat his wife told him tained therein. was not part of the res gesta. What Brooks said to him in the tunnel is in the same cate a revolver and his visit with his wife to Brooks' house are incompetent. Briefly stated, the last two paragraphs only of Exhibit 4 are competent, if the proper foundation is laid for the introduction of decedent's statement as a dying declaration. (4) It is next contended that the court erred in sustaining the objections of the state to the following question propounded to witness A. R. Joyce by defendant's counsel: "Now tell the jury what Mr. Brooks said when he came home at that time in that excited condition." [6-8] A court should exercise the utmost care and caution in admitting a statement as a dying declaration. The proof must clearly show that the deceased at the time of making said statement was fully conscious of the fact of impending death. If the deceased used language indicating he has hope of re- A like ruling was made in sustaining an covery, or that he is not under a sense of objection to a similar question propounded impending death, his declaration should be to Anna Joyce. Subsequently to these rulrejected. The fact that the declarant real-ings the defendant in the absence of the jury, izes that he is in danger of death is not offered to prove the following: enough. The words must be spoken under solemn conviction of impending dissolution. State v. Phillips, 118 Iowa, 660, 92 N. W. "That, when the defendant, Brooks, came home, to the home of this witness, on the morning of April 10th, between the hours of 6 and (186 N.W.) 6:30, in a nervous and excited condition, he told this witness that Harry Flippings jumped out from behind posts in a dark spot on Brooks' way to work, and in the darkness of the morning grabbed hold of him (Brooks) and said, 'Now I've got you,' and that he (Brooks), in self-defense, in order to save his own life, shot at and in the direction of Flippings. That he was sorry to have had to do it, but that he had to do it to save his own life, or that in substance." State, 48 Ga. 607; Powell v. State, 44 Tex. 63; State v. Tilly, 25 N. C. 424; Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; State v. Brown, 64 Mo. 367; Lander v. People, 104 Ill. 248. The court properly excluded the proffered testimony. [19-21] II. The court in instruction 21 told the jury: shooting Harry Flippings." This instruction is erroneous under the facts of the instant case. In order to justify or excuse homicide in self-defense, it is not necessary that deceased should have made an actual assault on the defendant, if the "That the defendant cannot justify himself for the shooting on the ground of self-defense The defendant offered this testimony as under the evidence in this cause unless he was part of the res gestæ, but, upon objection, actually assaulted on the early morning of April its admission was refused by the court. 10, 1919, by Harry Flippings," and further[12, 13] The declarations of an accused per-ed, then he was not acting in self-defense in more that "if the defendant was not so assaultson are not admissible as res gestæ, unless they are so connected with the main transaction and made under such circumstances as to exclude any presumption that they were premeditated or fabricated. Every case must necessarily depend upon its own circumstances. Meek v. Perry, 36 Miss. 190. No fixed measure of time or distance circumstances disclosed or raised a reasonfrom the main occurrence can be established to determine what shall be considered a part of the res gestæ. The declarations must be a part of the immediate preparation for or emanations of such act, and such as may not be said to be the calculated policy of the actor. [14, 15] They must be something more than a mere narrative of a past occurrence, and must be made at the time of the act done, or reasonably near the time, and must be considered as a part of the same continuous transaction. Such declarations are generally considered as the spontaneous utterance of thought created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design. They are automatic in a sense, and a necessary incident of the litigated act. It is not competent for an accused person to give in evidence through another witness his own account of the transaction, unless such statements are to be received as admissions on his part. [16] Res gesta is independent of, and cannot be restricted or limited to, the rules relating to admissions or confessions made after the commission of the act. Even though it is a self-serving declaration, if it is properly a part of the res gestæ it is admissible, notwithstanding the fact that it may not be admissible as a confession or an admission. able apprehension that he was about to do so. It is necessary that the deceased shall have indicated by some act at the time of the killing of real or apparent intention to kill or inflict great bodily harm upon the defendant, and thereby induce the latter to reasonably believe that it was necessary to kill to save himself. To charge that an actual assault is necessary, without further explanation, is misleading and prejudicial. [22, 23] The accused had the right to view the situation as an ordinarily prudent man, and act upon the apparent rather than the real danger to which he was exposed. State v. Donahoe, 78 Iowa, 486, 43 N. W. 297. There must be such an appearance of impending danger that the taking of life reasonably seems to be the only means of preventing the threatened injury. State v. Shelton, 64 Iowa, 333, 20 N. W. 459. If a person honestly believes, or has reason to believe at the time of the shooting. that he is in great peril, and great bodily harm is about to be inflicted upon him, he has a right to act under such well-grounded apprehension. The danger need not in fact exist. State v. Fraunburg, 40 Iowa, 555; State v. Abarr, 39 Iowa, 185; State v. Coìlins, 32 Iowa, 36. [24, 25] Neither court nor jury can apply the doctrine of ordinary prudence without having in mind the knowledge, conditions, and circumstances of the party called upon to act. The defendant in this case re[17, 18] In the instant case the testimony quested an instruction on self-defense relasought to be introduced is a mere narrative tive to the threats made by the deceased by the defendant at a time and place too against the defendant which were directly remote to come within the purview of res heard by the defendant or communicated to gestæ. It is a self-serving statement, and, him. It was refused. An accused person is under the circumstances lacks spontaneity. entitled to have his theory of the case exFurthermore, it may not be said that his plained to the jury, and the law stated apstate of mind 30 minutes after the homicide plicable thereto. There is no dispute that is a material fact in the case. See State v. Harry Flippings is dead, and that he came Jones, 64 Iowa, 349, 17 N. W. 911, 20 N. W. to his death by a revolver wound inflicted 470; Hall v. State, 40 Ala. 698; Hall v. by defendant. The primary question is whether the homicide is excusable upon the 14. Appeal and error 1002-Verdict on congrounds of self-defense. The dangers of flicting evidence conclusive. Where the evidence was in conflict and the verdict was not wanting in substantial support or the result of passion and prejudice, the verdict should stand. Appeal from Municipal Court of Des Moines; O. S. Franklin, Judge. Action to recover a balance claimed to be due on a contract of employment. Defendant pleaded a settlement and full payment. Verdict for plaintiff and defendant appeals. Affirmed. the situation to the defendant must be judged from the facts as they reasonably appeared to him, and these facts must justify a reasonable belief that there existed an actual necessity to shoot to kill. State v. Sterrett, 68 Iowa, 76, 25 N. W. 936; State v. Archer, 69 Iowa, 420, 29 N. W. 333. The testimony shows that the deceased was a hot-tempered fellow; that he frequently carried a gun; that he made threats to kill defendant; that it was dark when the fatal | shot was fired; that the defendant had reason to believe that the deceased would be in waiting for him on the morning in question, and he was in waiting, and had been for a considerable time. These were proper facts for the consideration of the jury on the defendant's theory of self-defense. It will FAVILLE, J. Appellee claims that he be readily conceded, if the circumstances was employed by the appellant as a traveling disclosed that it was daylight, and that the salesman for the year 1917, at an agreed salparties had casually met, the defendant, act-ary of $3,000 per year to be paid at the rate ing as a ordinarily prudent man, would not have been under such grave apprehension of bodily harm. Other points are noted and argued by appellant, but they are incidental to the propositions noticed herein, and will not recur upon a retrial. For the reasons stated, this cause is reversed and remanded. Mulvaney & Mulvaney, of Des Moines, for appellant. B. J. Cavanagh, of Des Moines, for appellee. of $200 per month during the year, and a bonus of $600 January 1, 1918. Appellee claims that he was discharged without cause in November, 1917, and sues for $550, which he claims is the balance due under the contract. Appellant claims a full and complete settlement with appellee in November, 1917, and payment at that time of the full amount EVANS, WEAVER, and PRESTON, JJ., due under the contract, and denies that the concur. FARR v. MACKIE MOTORS CO. (Supreme Court of Iowa. Jan. 17, 1922.) 1. Trial 352(1)-Refusal to submit interrogatory not calling for categorical answer not error. Notwithstanding Code, § 3727, providing for jury's finding on any particular question of fact when rendering a general verdict, in an action by an employé for a balance under a contract, the refusal of the court to submit a special interrogatory not calling for an affirmative or negative answer was not error. contract was for $600 bonus, as claimed by appellee. [1] I. Appellant's first contention is that the court erred in refusing appellant's request to submit to the jury the following special interrogatory: "Do you find that plaintiff's srvices were unsatisfactory and that he was discharged by J. H. Duro, defendant's manager, on account thereof on the 27th day of November, 1917." Code, § 3727, provides as follows: "The jury in any case in which it renders a general verdict may be required by the court, and must be so required on the request of any party to the action, to find specially upon any particular question of fact, to be stated to it in writing, which questions of fact shall be sub2. Trial 267(1)-No error in modifying re-mitted to the attorneys of the adverse party quested instruction. before argument to the jury is commenced." Failure to adopt the language of requested instruction was not error when the law therein This statute has been the subject of reannounced was embodied in an instruction given.sion to review our previous holdings in the We had occapeated consideration by us. 3. Accord and satisfaction 27-Whether receipt was full and complete settlement for jury under all the evidence. In an action by an employé for a balance under a contract, where defendant introduced a receipt "in full of above account" dated the day of plaintiff's discharge, refusal to direct a verdict for defendant on the ground of a full and complete settlement was not error; the question being for the jury under all the evidence. case of King v. C., R. I. & P. Ry. Co., 185 Iowa, 1227, 172 N. W. 268. We also considered this statute in the more recent case of Johnson v. City of Denison, 186 Iowa. 949, 173 N. W. 46. We do not need to review the authorities again. The statute regarding special interrogatories should not be ignored. Of necessity a large discretion is vested in the trial courts in regard to the matter of submitting special interrogatories. (186 N.W.) They should not be used to cross-examine a | examination, he said: "I did not settle with jury or obtain an expression of its finding in him." He further says: regard to various items of conflicting evidence that may not be determinative of the Neither should they be so framed as to in any manner mislead a jury. They should be so worded as to be answered affirmatively or negatively, and the answer should be determinative of some fact involv case. "I had no conversation with Mr. Duro on the 27th of November outside of the fact I was willing to continue until January 1st as per my agreement and that I still expected my $600 to be paid me. "I told him that after I received the checks. "It is not true the first time I ever mention ed in the right to recover. We think the ed the $600 to Mr. Duro was a considerable trial court was justified in refusing to sub-time after I received the checks and when he mit the special interrogatory asked in the asked me to repay the $50 that we instant case, because of the manner in which it was framed. The question really is a "double-headed" question and did not necessarily call for an affirmative or negative answer. The jury in response to this interrogatory could have found that the plaintiff's services were unsatisfactory and that he was not discharged on account thereof. So that the question would not necessarily have to have been answered by "yes" or "no." Furthermore, the use of the word "unsatisfactory" was unfortunate. The services might have been unsatisfactory to the defendant's manager without giving him just or legal cause for the discharge of the plaintiff. There was no such error in the refusal to submit this special interrogatory as warrants us in reversing the case on this ground. [2] II. Error is predicated upon the court's refusal to give instruction No. 1 requested by appellant. The matters contained there in were fully covered by the court in instruction No. 5, supra. Appellant cannot complain because the court failed to adopt the precise language of the requested instruction when the law therein announced was fully and accurately embodied in an instruction given by the court. [3] III. It is contended by appellant that the court erred in overruling appellant's motion for a directed verdict on the ground that the parties had made a full and complete settlement on November 27, 1917. On said date, the appellee was discharged by the appellant and was paid the sum of $27.40, and signed a receipt as follows: "Received of Mackie Motors Company the sum of $27.40 in full of the above account." The appellee testified: "At the time that I was given the check for $27.40, I was owing an account to the defendant for some casings, coverings, and some kind of royal cord casing that I used on my personal car in the amount of $72.60, that left a balance of $27.40 coming to me at that time. "The check Exhibit 3 for $27.40 is the difference between $72.60 that I owed the company and $100 that the company owed me for the last half of November, 1917." looked." over Upon this record, it was not error for the court to refuse to direct a verdict for appellant on the ground that there had been a full and complete settlement between the parties on November 27, 1917, at the time the receipt was given. The question was properly submitted to the jury for determination under all the evidence. [4] IV. It is argued that the verdict is the result of passion and prejudice and should not be permitted to stand. Appellee's case rests on his own testimony and that of a former manager of the appellant company, who has also been discharged from the service of said company. Much of appellee's evidence is denied by the present manager of the appellant. The evidence was in conflict. and it was for the jury to determine the truth of the matter, under the instructions of the court. Even if we might have reached a different conclusion had we been the triers of fact, we cannot say that the verdict of the jury is wanting in substantial support by the evidence or that it is the result of passion and prejudice. We find no reversible error in the record, and the judgment appealed from is affirmed. STEVENS, C. J., and EVANS and ARTHUR, JJ., concur. (No. 34260.) STATE v. OLANDER. (Supreme Court of Iowa. Jan. 17, 1922.) 1. Constitutional law 70 (3)-Wisdom of law not matter for court to determine. Whether the statute providing for capital punishment is a wise law, and whether or not it has the deterring effect intended and expected by its passage, is not a matter for the courts to determine. 2. Pardon 13-Governor may commute sentence. Under Const. art. 4, § 16, the Governor has authority to commute death sentence to life imprisonment. 3. Criminal law 1183-Authority of SuAppellee, in his testimony, referred to No- preme Court to commute sentence. vember 27, 1917, as the time "when we setThe power of the Supreme Court to reduce tled up and when they fired me." On cross-punishment under Code, § 5462, will be exer For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cised only when the court below manifestly | Dodge. When the mills closed down he was visited too severe a penalty, one dispro- out of employment. He claims to be now portionate to the degree of guilt as shown by penitent, and, while confined in jail, wrote a the proof. letter to the widow of his victim, with the 4. Homicide 354-Death penalty held not hope perhaps that this and his plea of guilexcessive. Death penalty was not excessive as to one who killed father of four children while committing a robbery upon the deceased, though the accused pleaded guilty and was contrite, and his accomplices were tried by jury and given only life sentences. Weaver, J., dissenting. Court, Webster Appeal from District The defendant pleaded guilty to murder in the first degree, and was sentenced to be hanged August 11, 1922. He appeals. Affirmed. ty 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, prepared and willing to kill, if it became necessary. The statute makes a killing under such circumstances murder in the first degree. [1] 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 asHealy & Breen, of Fort Dodge, for appel-sociates-I feel the great responsibility. The state asks that the extreme penalty inflicted lant. B. J. Gibson, Atty. Gen., B. J. Flick, Asst.be sustained for its deterring effect upon othAtty. Gen., and V. E. Gabrielson, Co. Atty., ers similarly inclined, and for the protection of Fort Dodge, for the State. 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, un of society. We are asked by appellant to capital punishment does not have the deterless it be that the penalty of death is ex- ring effect intended and expected by its passage. Whether the law is wise or not, cessive. The deceased, Halfpap, an honorable citi- we have nothing to do. Counsel for appelzen, while engaged with his duties as a mer-lant state that they "believe the sentence of death should be commuted to life imprisonchant, was killed by a shot from a re volver, held in the hands of this defendant, ment. That is all there is to this appeal." while he and two confederates, Otis Goble They contend that the judgment is excessive, and Elmer Sweeny, were perpetrating a rob- not alone because of the matters before rebery. At the time of the hearing herein, Go-ferred to, but because of his conduct since ble and Sweeny had not been tried. There his arrest, in pleading guilty, saving the state the expense of a trial, and 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. is no doubt whatever of defendant's guilt. This is conceded. His counsel state that for defendant's crimes of robbery and 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 family. When defendant was about 15 years of age he stole some property of small value, and was sent to the Industrial School at Eldora, where he remained for 2 or 3 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 [2-4] Appellant cites no cases, and the state cites but one (State v. Smith, 127 Iowa, 528, 103 N. W. 769) 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, art. 4, § 16. Chapter 73, Acts 39th G. A. (Code, § 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 re |